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UNIV.  OF  WS.  LIBRARY 

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LIBRARY 

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THE  CITIZEN'S  LIBRARY 

OF 

ECONOMICS,  POLITICS,  AND 
SOCIOLOGY 

EDITED  BY 
RICHARD  T.  ELY,  PH.D.,  LL.D. 

PROFESSOR   OF   POLITICAL  ECONOMY, 
UNIVERSITY  OF  WISCONSIN 


THE    PRINCIPLES    OF    ANTHROPOLOGY 

AND     SOCIOLOGY    IN    THEIR 

RELATIONS  TO  CRIMINAL 

PROCEDURE 


THE  MACMILLAN  COMPANY 

NEW  YORK   •    BOSTON   •    CHICAGO 
SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   •    BOMBAY   •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


THE  CITIZEN'S  LIBRARY 


THE 

Principles    of   Anthropology 

and  Sociology  in  Their 

Relations    to    Criminal 

Procedure 

BY 

MAURICE  PARMELEE,  M.A. 


"La  science  de  la  justice  et  la  icienct 
de  la  nature  sont  une.  II  faut  que  la 
Justice  devienne  une  me'decine  s'ecltir- 
ant  des  sciences  psyehologiques." 


$orfc 

THE  MACMILLAN  COMPANY 
1917 

All  rights  reservtd 


COPYEIGHT.  1908 

BY  THE  MACMILLAN  COMPANY 


Set  up  and  electrotyped.    Published  September.  igo6 
Reprinted  February,  igu 
Reprinted  December,   1912 
Reprinted  March,  1917. 


THE  MASOW-H1NEY  PSIil 

STKACUSE.  NEW  YORK 


•A 


OR  EXCHANGED 

UNIV.  OF  WIS.  LIBRARY 


CONTENTS 

Pace 

INTRODUCTION 3 

Recent  changes  in  the  treatment  of  the  crimi- 
nal.— The  new  science  of  criminology. — Study  of 
penology  in  America. — Logical  order  of  study. — 
Point  of  view  and  plan  of  this  book. 

CHAPTER  I 

THE  SCIENCE  OF  CRIMINOLOGY 9 

The  eighteenth  century  philosophers. — Sum- 
mary of  the  Crimes  and  Punishments  of  Bec- 
caria. — The  classical  school  of  criminology. — The 
neoclassical  and  correctionalist  schools. — The  posi- 
tive school  of  criminology. — Lombroso,  Garofalo,,- — 
Ferri. — The  positive  method  and  principles. — Rea- 
sons for  studying  criminal  procedure. — The  indi- 
rect methods  of  repressing  crime. 

CHAPTER  II 
CRIMINAL  ANTHROPOLOGY  AND  SOCIOLOGY      ...      24 

Lombroso's  atavistic  theory  of  the  criminal. — 
Anatomical  characteristics  of  the  criminal. — Bio- 
logical and  psychological  characteristics. — Moral 
imbecility  and  the  born  criminal. — Epilepsy  and 
congenital  criminality. — The  criminal  by  pas- 
sion.— The  insane  criminal. — The  occasional  crimi- 
nal.— Synthesis  of  Lombroso's  theory. — Garofalo's 
definition  of  crime  based  upon  the  analysis  of  the 
feelings. — Fern's  replies  to  criticisms  of  criminal 
anthropology. — Classification  of  criminals. — Method 
and  subject  matter  of  criminal  sociology. — Clas- 
sification of  the  causes  of  crime. — The  law  of 


CONTENTS 

Pate 

criminal  saturation. — The  equivalents  of  punish- 
ment.— The  criminal  as  a  degenerate. — The  criminal 
as  a  neurasthenic. — The  criminal  as  a  phenomenon 
of   psychic  atavism. — The   infantiles,    effeminates 
and    seniles. — The    criminal    type. — Evolution    of 
criminal    anthropology    and    sociology. — Relation 
of  these  two  sciences  to  each  other. — Applications 
of    criminal    anthropology. — Ideal    and    scientific 
justice. 

CHAPTER  III 
SOCIETY  AND  THE  CRIMINAL    ......      92 

Definitions  of  crime. — The  relation  between  so- 
ciety and  the  criminal. — The  development  of  social 
defense  against  crime. — Penal  responsibility. — 
Evolution  of  the  idea  of  moral  liberty. — A  social 
basis  for  penal  responsibility. — A  criterion  for  the 
fixation  of  responsibility. — Measures  of  social 
defense. — Criminal  procedure  as  a  direct  measure 
of  social  defense. — Its  relation  to  the  penal  code. — 
Intimidation  as  an  end  of  punishment 

CHAPTER  IV 
THE  INDIVTDUALIZATION  OF  PUNISHMENT     .       .       .139 

The  history  of  individualization. — Its  prin- 
ciples.— Its  forms. — Objections  to  individualiza- 
tion.— The  indeterminate  sentence. — Suspension  of 
sentence  and  the  probation  system. — The  judicial 
admonition. — Judicial  rehabilitation. — Individual- 
ization for  juvenile  criminals. — Relation  of  judicial 
to  administrative  individualization. — Suggestions 
for  a  system  of  individualization. 

CHAPTER  V 
LAW 182 

Nullum  crimen,  nulla  pcena  sine  lege. — Criminal 
law  restricted  to  social  interests. — Punishment 
determined  by  social  necessity. — Equality  of  citizens 
before  the  law, — Premeditation  and  intention  as 


CONTENTS 

Page 

furnishing  a  criterion  of  crime. — Extenuating  and 
aggravating  circumstances. — Attempted  crimes. — 
Complicity. — Reiteration  and  recidivation. — Ap- 
peals.— Prescription  of  penal  action. — The  reform 
of  criminal  law. — The  classification  of  offenses  in 
the  penal  code. 

CHAPTER  VI 
THE  SYSTEMS  OF  CRIMINAL  PROCEDURE        .       .       .219 

Functions  of  criminal  procedure. — The  proced- 
ure of  accusation. — The  procedure  of  investiga- 
tion.— Comparison  of  the  two  types  of  procedure. 

CHAPTER  VII 

THE  POLICE  AGENCY 238 

The  police  functions. — Summary  arrest. — War- 
rants.— Preliminary  detention. — Provisional  liber- 
ation.— The  search  for  evidence. — Prosecution  by 
the  police. — The  personnel  of  the  police. — Methods 
of  identification. — The  officials  of  the  police. — The 
press  and  the  public  as  aids  to  the  police. — An 
international  police  union. 

CHAPTER  VIII 

PROSECUTION  AND  DEFENSE 263 

Accusation,  public  and  private. — Prosecution, 
public  and  private. — Indemnification  for  mistaken 
prosecution. — Reparation  to  the  victim  of  crime. — 
Defense,  private  and  public. — The  plea  of  guilty. — 
Public  defense  and  the  probation  system. — Public 
defense  and  the  legal  profession. — The  utility  of 
the  contradictory  debate. 

CHAPTER  IX 
EVIDENCE 287 

Xhe  evolution  of  proof. — The  English  law  of 
evidence. — The   kinds    of    evidence. — Competency 
of    witnesses. — Admissibility   of   evidence. — Suffi- 
vii 


CONTENTS 

Page 

cicncy  and  weight  of  evidence. — The  presumption 
of  innocence. — Leading  questions. — The  burden 
of  proof. — The  specific  intent. — Testimony  of  the 
accused. — Comments  upon  and  criticisms  of  the 
law  of  evidence. — The  preliminary  examination. — 
The  examination  in  the  trial. — The  contradictory 
debate. — The  charge  to  the  jury. — The  relativity 
of  legal  proof. — Medical  jurisprudence. — Expert 
testimony. — A  scientific  classification  of  evi- 
dence.— Scientific  means  of  gathering  evidence. — 
The  oath. — The  psychology  of  testimony. — The 
scientific  stage  of  evidence. 

CHAPTER  X 

THE  JURY 355 

Origin  and  history  of  the  jury. — Principles 
underlying  the  jury — The  kinds  of  juries. — Per- 
sonnel of  the  petit  jury. — Characteristics  of 
jurors. — The  functioning  of  the  jury. — Faults  and 
weaknesses  of  the  jury. — The  reform  of  the 
jury. — Arguments  for  and  against  the  jury. — 
Influence  of  the  jury  on  the  law  of  evidence. — 
The  political  aspect  of  the  jury. — The  jury  for 
political  and  press  offenses. — The  grand  jury. 

CHAPTER  XI 
THE  JUDICIARY 388 

The  personnel  of  the  criminal  bench. — Powers 
and  functions  of  the  judge. — Faults  of  the  judge. — 
A  scientific  criminal  magistracy. — The  indepen- 
dence of  the  criminal  bench. — The  increasing 
powers  of  the  judge. 

CHAPTER  XII 
THE  NEW  CRIMINAL  PROCEDURE     .....    403 

Outline  of  the  new  procedure. — Relation  of 
criminal  procedure  to  penal  treatment. — The  peri- 
odic revision  of  sentences. — The  evolution  of  the 
new  procedure. — A  higher  standard  of  justice. 


THE    PRINCIPLES    OF    ANTHRO- 
POLOGY AND  SOCIOLOGY  IN 
THEIR   RELATIONS 
TO    CRIMINAL 
PROCEDURE 


INTRODUCTION 

The  recent  progress  of  civilization  has  caused 
few  greater  changes  than  in  the  treatment  of  the 
criminal.  It  is  scarcely  more  than  a  century  since 
criminals  were  treated  with  the  greatest  cruelty. 
Torture  was  frequently  used  to  extort  confessions 
and  many  of  the  penalties  inflicted  were  most 
brutal.  But  the  eighteenth  century  philosophers 
inspired  by  a  humanitarian  feeling  protested 
against  these  abuses  as  they  did  against  every  form 
of  inhumanity.  This  protest  combined  with  other 
forces  resulted  in  the  abolition  of  torture  in  most 
civilized  countries  and  in  making  punishment  much 
more  humane.  The  power  of  judges  which  had 
been  very  arbitrary  was  greatly  restricted  and  pen- 
alties are  now  inflicted  only  under  the  sanction  of 
the  penal  code. 

The  work  of  the  nineteenth  century  along  these 
lines,  therefore,  has  been  to  render  the  treatment  of 
the  criminal  humane  and  to  subject  it  to  a  strict 
regime  of  law.  In  the  latter  part  of  the  nineteenth 
century  a  new  science  of  criminology  has  been  de- 
veloped. This  science  is  divided  into  two  branches, 
criminal  anthropology  and  criminal  sociology.  The 
first  of  these  two  branches  deals  with  the  criminal 
man,  his  physiological  and  psychological  character- 

3 


istics,  etc.  The  second  deals  with  the  social  causes 
of  crime.  Criminal  anthropology  and  sociology 
are  of  the  greatest  importance  and  significance  for 
the  treatment  of  the  criminal.  The  application  of 
their  principles  to  this  treatment  does  not  mean  the 
denial  of  the  principles  which  have  been  established 
during  the  nineteenth  century,  namely,  that  this 
treatment  shall  be  humane  and  that  it  shall  be  regu- 
lated by  law.  But  it  may  modify  in  certain  respects 
the  way  in  which  these  latter  principles  are  to  be 
applied. 

These  two  sciences,  criminal  anthropology  and 
sociology,  do  not  require  that  punishment  shall  be 
cruel  and  inhuman.  But  the  tendency  in  applying 
the  principle  that  punishment  shall  be  humane  has 
been  to  work  solely  for  the  reduction  of  punish- 
ment, whereas  the  principle  of  social  defense  which, 
as  we  shall  see,  grows  out  of  these  sciences  requires 
that  penalties  shall  be  adapted  to  the  criminals  and 

;e  crimes  they  have  committed.  This  means  that 
penalties  must  sometimes  be  increased  instead  of 
reduced  in  severity.  In  like  manner  these  sciences 
do  not  require  that  the  treatment  of  the  criminal 
shall  be  independent  of  the  law.  But  they  would 
replace  the  rigid  regulation  of  the  law  by  more 
flexible  and  scientific  standards,  which  will  permit 
of  the  individualization  of  punishment  which  we 
shall  discuss  further  on. 

The  problem  before  us  therefore  is  that  of  the 
readjustment  of  the  application  of  these  principles, 
so  that  the  data  of  criminology  can  be  utilized  in 
the  treatment  of  criminals.  To  solve  this  problem 


INTRODUCTION  . 

it  is  necessary  to  study  on  the  one  hand  criminal 
law  and  procedure,  and  on  the  other  hand  criminal 
anthropology  and  sociology. 

This  new  science  of  criminology  has  been  devel- 
oped almost  entirely  on  the  Continent.  Crimin- 
ological  problems  are  being  studied  there  not  only 
by  anthropologists,  sociologists  and  jurists,  but  also 
by  neurologists,  alienists,  psychologists,  philoso- 
phers, etc.  In  America  there  has  been  almost  no 
study  of  this  science.  But  penology  which  deals 
with  the  treatment  of  the  criminal  after  conviction 
has  been  studied  quite  extensively.  This  has  been 
rather  illogical,  because  law  and  criminology  should 
be  studied  before  penology.  This  reversal  in  the 
order  of  study  has  probably  been  caused  by  the 
many  practical  reforms  which  have  been  introduced 
in  this  country.  Since  this  is  a  new  country  it  has 
been  possible  to  develop  along  somewhat  new  lines. 
The  first  reforms  were  in  the  construction  of  prisons 
of  which  many  new  ones  had  to  be  built.  As  early 
as  1831  the  French  government  sent  a  commission 
of  two,  one  of  whom  was  Alexander  De  Tocqueville, 
to  study  American  penal  institutions.  At  first  this 
development  was  inspired  only  by  the  humane  de- 
sire to  improve  the  conditions  of  the  convict.  Then 
gradually  the  idea  of  the  reformation  of  the  criminal 
began  to  filter  in  and  found  expression  in  the  estab- 
lishment of  reformatories.  The  first  of  these, 
opened  at  Elmira,  N.  Y.  in  1876,  set  the  model  for 
many  more  in  other  states.  At  Elmira  have  been 
introduced  many  forms  of  physical  and  mental 

5 


CRIMINAL    PROCEDURE 

treatment  for  the  reformation  of  the  criminal,  some 
of  which  have  been  very  successful. 

With  the  reformatory  movement  has  been  intro- 
duced the  indeterminate  sentence  which  is  also  a 
modification  of  criminal  procedure.  Other  modi- 
fications in  procedure  have  been  juvenile  courts, 
conditional  release  or  probation,  etc.  These  modi- 
fications have,  like  the  reformatory  movement,  had 
the  reformation  of  the  criminal  in  view,  and  have 
been  almost  entirely  empirical  in  their  character. 

It  is  now  very  essential  that  these  reforms  should 
be  studied  in  the  light  of  this  new  science  of  crim- 
inology, and  that  they  should  be  given  a  sound 
scientific  basis.  European  science  and  American 
practical  reform  should  be  brought  together.  As 
an  English  writer  has  expressed  it :  "The  European 
criminologists  have  worked  for  the  most  part  purely 
as  scientific  investigators.  The  founders  of  Elmira, 
on  the  other  hand,  seem  to  have  been  guided  purely 
by  practical  and  social  considerations,  and  to  have 
had  no  knowledge  of  the  scientific  movement  that 
was  arising  in  Europe.  In  the  future,  there  is 
now  good  reason  to  hope,  these  two  currents  of 
scientific  advance  and  practical  social  progress  will 
be  united."1 

We  can,  therefore,  take  the  work  of  the  Conti- 
Aental  criminologists  as  the  scientific  basis  of  our 
itudy.  The  logical  order  of  study  then  is  that  of 
procedure  and  finally  of  penology  just  as  the  chron- 
ological order  in  the  practical  working  of  procedure 

*Havelock  Ellis,  in  the  preface  to  The  New  York  State 
Reformatory  in  Elmira,  Alexander  Winter,  London,  1891. 

6 


INTRODUCTION 

and  of  penal  treatment  is  procedure  before  pena\ 
treatment.  The  penal  treatment  depends  upon  the 
procedure  because  it  is  the  procedure  that  decides 
who  is  to  have  the  treatment,  and  also  to  a  certain 
extent  their  classification  and  the  kind  and  length 
of  treatment.  It  is  also  true  that  the  study  of  penal 
treatment  reacts  on  procedure  and  frequently  causes 
great  changes  in  it  so  that  there  is  an  intimate  re- 
lation between  the  two. 

In  this  book  we  are  to  study  criminal  procedure 
from  the  point  of  view  of  the  modern  science  of 
criminology.  It  is  evident  that  such  a  book  is  no 
purely  legal  treatise.  We  do  not  regard  procedure 
merely  as  a  legal  process.  Our  conception  is  much 
more  philosophic  for  we  regard  criminal  procedure 
as  a  process  by  means  of  which  the  class  called 
criminal  is  separated  from  the  rest  of  society.  It  is 
one  of  the  most  important  agencies  of  organized 
society,  and  the  study  of  it  is  involved  with  some  of 
the  profoundest  problems  of  political  and  social 
science.  We  shall  endeavor  to  show  not  only  its 
legal  aspect,  which  is  the  only  one  usually  thought 
of  and  studied,  but  also  its  great  political  and  social 
importance. 

This  study  is  of  great  practical  importance  to-day 
on  account  of  the  modifications  in  procedure  to 
which  we  have  just  referred.  But  it  is  also  of  great 
importance  for  the  development  of  the  science  of 
criminology.  In  fact  it  is  doubtful  if  there  is  any 
study  more  necessary  to-day  for  this  purpose  than 
this  one.  It  is  by  putting  into  practise  the  princi- 
ples that  have  already  been  discovered  and  utilizing 

7 


CRIMINAL    PROCEDURE 

the  data  that  have  already  been  gathered  that  the 
science  can  be  most  rapidly  developed.  In  this  book 
will  be  pointed  out  the  applications  of  criminal 
anthropology  and  sociology  to  procedure,  thus  aid- 
ing this  rapid  development. 

The  plan  of  this  book  will  be  as  follows.  In  the 
first  two  chapters  the  development  of  the  science 
of  criminology  will  be  described  and  the  conclu- 
sions and  data  of  criminal  anthropology  and  soci- 
ology will  be  summarized.  In  the  next  chapter  the 
question  of  the  relation  of  the  criminal  to  society 
and  the  question  of  penal  responsibility  will  be  dis- 
cussed. In  the  fourth  chapter  the  principle  of  the 
individualization  of  punishment  will  be  expounded. 
In  the  fifth  chapter  the  significance  of  this  new 
science  for  the  fundamental  principles  of  criminal 
law  will  be  indicated.  In  the  sixth  chapter  the 
two  fundamental  types  of  procedure  will  be  de- 
scribed. Then  in  each  succeeding  chapter  one  part 
of  procedure  will  be  taken  up  indicating  the  appli- 
cations of  criminal  anthropology  and  sociology  in 
each  case.  The  book  will  end  with  an  outline  of  a 
more  or  less  new  system  of  procedure  based  on  a 
sound  scientific  basis. 


CHAPTER  I 
THE  SCIENCE  OF  CRIMINOLOGY 

The  eighteenth  century  witnessed  an  awakening 
of  interest  in  social  problems  which  preceded  and 
to  a  considerable  extent  prepared  the  way  for  the 
great  political  and  social  revolutions  of  modern 
times.  This  awakening  among  the  eighteenth  cen- 
tury philosophers,  Montesquieu,  Voltaire,  Rousseau, 
the  Encyclopedists,  etc.,  was  caused,  in  the  first 
place,  by  a  humanitarian  feeling  which  revolted 
from  the  horrors  of  war  and  the  cruelty  and  op- 
pression of  tyrants.  It  was  also  caused  by  a  study 
of  the  history  of  the  liberal  forms  of  government 
which  had  existed  in  the  past,  such  as  the  aristoc- 
racies and  democracies  of  Greece  and  Rome  in 
ancient  times  and  of  Italy  in  the  Middle  Ages. 
From  this  study  were  deduced  the  principles  with 
regard  to  the  extent  of  individual  liberty  and  the 
limitations  of  the  powers  of  government  and  of 
sovereignty  which  furnished  the  theoretic  basis  for 
the  great  revolutions  which  soon  followed. 

Among  the  evils  attacked  by  these  writers  was  the 
treatment  of  criminals  and  of  those  accused  of 
crime.  Again  and  again  in  their  writings  we 
find  condemnation  of  various  features  of  the  sys- 

9 


CRIMINAL    PROCEDURE 

tern  of  criminal  procedure  and  penal  treatment 
which  then  existed  almost  universally,  such  as  the 
almost  unlimited  power  of  the  judge,  the  use  of 
torture  to  extort  confession,  and  the  many  barbaric 
punishments  inflicted.  In  opposing  these  abuses 
they  insisted  upon  the  rights  of  humanity  and  pro- 
posed more  just,  humane  and  rational  methods  of 
treatment. 

The  principles  enunciated  by  these  writers  with 
regard  to  crime  were  collected  and  stated  in  the 
"Crimes  and  Punishments"  of  Cesare 


which  was  published  in  1764.  In  this  famous  book 
Beccaria  summed  up  so  successfully  the  contribu- 
tions of  the  eighteenth  century  philosophers  to 
criminal  jurisprudence  that  it  became  the  theoretic 
basis  for  the  great  reforms  in  criminal  procedure 
which  soon  followed,  and  its  principles  still  under- 
lie to  a  considerable  extent  most  of  the  existing 
systems  of  procedure.  It  also  furnished  the  start- 
ingpoint  for  the  classical  school  of  criminology. 
For  these  reasons  we  will  give  a  summary  of  those 
parts  of  the  book  which  still  have  practical  im- 
portance. 

After  describing  the  haphazagd-origin  of  penal 
codes  and  showing  that  most  laws  ajje_Jb£_i£suh;_o£- 
chance  and  not  of  careful  thought,  he  declares  that 
the  object  oj  law_should  be  the  jxeatest_hap_£iness 
jof_Jhegreatest  number.1  He  then  states  the  doc- 
trine ^of^Iie^socialcontract.  This  doctrine  had 
been  enunciated  two  years  before  by  Rousseau  in 
his  "Contrat  Social."  According  to  this  doctrine 

»Int. 

10 


THE    SCIENCE    OF    CRIMINOLOGY 

men  were  absolutely  free  and  independent  in  a  state 
of  nature.  Then  coming  together  to  live  each  gave 
up  a  small  part  of  his  freedom  in  accordance  with 
the  social  contract  in  order  to  obtain  the  benefits 
of  union.  The  sum  total  of  this  power  given  up 
by  each  individual  is  exercised  by  the  sovereign  or 
executive  branch  of  the  government,  according  to 
the  laws  passed  by  the  legislative  branch  which  may 
be  democratic,  aristocratic,  or  of  some  other  form. 
This  doctrine  has  no  foundation  in  history,  and  it 
is  quite  probable  that  Rousseau  himself  knew  that 
it  was  a  fiction.  But  it  very  distinctly  asserted  the 
liberty  of  the  individual  as  a  fundamental  and  orig- 
inal right  and  could  be  used  very  effectively  against 
the  tyrannical  use  of  power.  Beccaria  starts  out 
with  this  conception  of  the  social  contract  as  the 
basis  of  society.  But  each  individual  has  a  tendency 
to  overstep  the  bounds  of  the  social  contract,  and 
to  commit  acts  which  destroy  it,  such  acts  being 
crimes.1  The  right  of  punishment  is  derived  from 
the  necessity  of  suppressing  such  acts  in  order  to 
preserve  the  social  contract,  any  other  use  of  this 
right  being  tyrannical.2  Penalties  can  be  imposed 
only  in  accordance  with  laws  passed  by  a  legislator 
or  by  legislators  representing  all  of  society  united 
by  the  social  contract.  The  duty  of  judges  is  only 
to  decide  whether  or  not  the  laws  have  been 
broken.3  The  judges  have  no  right  to  interpret  the 
laws  according  to  their  own  ideas  of  justice,  but 
must  apply  them  exactly  as  they  have  been  legis- 
lated.4 The  laws,  therefore,  should  not  be  obscure 

1  Ch,  I.  2  Ch.  II.  3  Ch.  III.  •  Ch.  IV. 

ii 


CRIMINAL    PROCEDURE 

so  as  to  need  any  interpretation,  and  should  be 
printed  in  the  common  language  so  as  to  be  within 
the  reach  of  all.1  The  measure  of  punishment 
should  be  the  injury  done  to  the  public  welfare  by 
a  crime,  and  not  the  intention  of  the  criminal.2 

Crimes  are  divided  into  those  against  the  exist- 
ence of  society  and  government,  those  against  the 
person,  property,  and  honor  of  an  individual,  and 
those  against  the  public  welfare.8  The  object  of 
punishment  is  to  restrain  the  criminal  from  doing 
further  injury  to  society  and  to  turn  others  from 
similar  crimes.4 

Every  reasonable  human  being  is  a  reliable  wit- 
ness provided  his  or  her  credibility  is  not  diminished 
by  relations  of  friendship  or  of  enmity  with  the 
accused.  One  witness  of  guilt  is  not  sufficient  for 
conviction  because  counterbalanced  by  the  word  of 
the  accused.  The  greater  the  atrocity  of  a  crime, 
the  stronger  evidence  required  on  account  of  its 
improbability.5  Proof  is  no  stronger  than  the 
weakest  link  in  the  chain  of  argument.  Perfect 
proof  excludes  possibility  of  innocence.  Imperfect 
proof  does  not  exclude  this  possibility.  Those  who 
wish  should  be  judged  by  their  peers.6  Punishment 
should  be  prompt  and  certain  thus  obviating  any 
need  for  harshness.7  Crimes  against  the  person 
should  receive  punishment  of  the  person.8  Thefts 
without  violence  should  be  punished  with  enforced 

1  Ch.  V.  B  Ch.  XIII. 

2  Chs.  VI   and  VII.  "  Ch.  XIV. 

sChs.  VHI-Xi.  7Chs.  XIX  and  XXVII. 

«Ch.  XII.  »Ch.  XX. 


THE    SCIENCE    OF    CRIMINOLOGY 

labor.1  Society  should  be  regarded  as  a  group  of 
men  each  having  his  own  individual  rights  and 
liberties,  and  not  as  a  family  with  an  autocratic  gov- 
ernment.2 The  death  penalty  is  not  just,,  does  not 
prevent  crime,  and  increases  the  sentiment  of 
cruelty  in  society.3  The  power  of  imprisonment 
should  be  strictly  guarded  and  exercised  only  under 
conditions  specified  by  the  law  and  not  at  the  dis- 
cretion of  a  judge.4  Trial  should  follow  promptly 
after  accusation  and  definite  limitations  should  be 
placed  to  the  time  of  bringing  accusations.5  Crimes 
difficult  to  prove  should  be  carefully  tried.6  Crimes 
commenced  should  not  be  punished  as  severely  as 
those  consummated.  Accomplices  should  be  pun- 
ished with  equal  severity  and  no  impunity  should 
be  permitted  for  information  given.7  Crime  can 
be  prevented  by  good  laws,  by  the  spread  of  knowl- 
edge, by  the  distribution  of  prizes  and  by  educa- 
tion.8 The  tribunals  should  be  more  numerous  in 
order  to  prevent  corruption  and  usurpations  of  the 
laws.9  Pardon  would  be  unnecessary  with  just 
and  moderate  punishments.10  "In  order  that  every 
punishment  should  not  be  an  act  of  violence  exer- 
cised by  a  single  person  or  several  persons  against 
a  citizen,  it  should  be  essentially  public,  prompt, 
necessary,  proportioned  to  the  crime,  dictated  by 
the  laws,  and  the  least  rigorous  possible  in  the 
given  circumstances."11  With  these  words  Beccaria 

'Ch.  XXII.  2Ch.  XXVI.  «Ch.  XXVIII. 

4Ch.  XXIX.  "Ch.  XXX.  "Ch.  XXXI. 

7  Ch.  XXXVII.          •  Chs.  XLI,  XLII,  XLIV,  XLV. 
•Ch.  XLIII.  10Ch.  XLVI.  "Ch.  XLVII. 

13 


CRIMINAL    PROCEDURE 

ends  his  book.  In  other  chapters  which  now  have 
a  historical  interest  only  he  attacked  such  abuses 
as  secret  accusations,  torture,  confiscations,  etc. 

Out  of  the  thought  and  writings  of  these  eigh- 
teenth century  philosophers  grew  the  classical 
school  of  criminology  which  has  dominated  the  de- 
velopment of  penal  codes  and  systems  of  procedure 
during  the  nineteenth  century.  This  school  was 
inspired,  as  we  have  seen,  by  a  humane  spirit  which 
revolted  against  the  cruelty  with  which  criminals 
were  being  treated.  Their  first  great  principle  was 
the  same  principle  ofindividualism  which  inspired 
the  French  Revolution,  namely,  that  the  rights  and 
liberties  of  the  individual  must  be  conserved.  j\l]L 
persons  being  equal  those  having  committed  the 
same  crime  should  be  treated  alike.  From  this  was' 
derived  the  second  great  principle,  namely,  that 
crime  is  a  juridical  abstraction.  Consequently  a 
penalty  which  was  invariably  inflicted  was  attached 
to  each  crime.  This  principle  turned  the  attention 
away  from  the  criminal  to  the  crime  alone.  A 
thirdjgrinciple  was  that  punishment  should  be  lim- 
ited by  the  social  need  and  the  tendency  was  to- 
wards the  diminution  of  punishment.  The  social 
utility  of  punishment  consisted  in  its  intimidatory 
power  and  as  much  punishment  was  necessary  as 
would  intimidate  others  from  committing  the  same 
crime.  The  amount  of  injury  done  to  society  also 
helped  sometimes  to  determine  the  penalty. 

Back  of  these  principles  though  not  so  clearly 
formulated  was  a  belief  in  the  existence  of  a  free 
will.     The  necessarv  corollary  of  this  belief  is  that 
14 


THE    SCIENCE    OF    CRIMINOLOGY 

a  criminal  is  morally  responsible  for  the  crimes  he 
has  committed.  This  was  the  deduction  made  by 
the  classical  school.  Consequently  all  persons  who 
had  committed  the  same  crime  were  equally  guilty 
and  it  became  unnecessary  to  give  any  further 
thought  to  the  nature  of  the  criminal.  It  would 
perhaps  have  been  more  logical  if  this  school,  when 
classifying  crimes  and  determining  their  enormity, 
had  been  guided  by  a  theologico-ethical  standard 
which  would  have  indicated  the  extent  of  moral 
guilt  in  each  crime.  But  in  practise  it  was  gov- 
erned by  the  social  significance  of  each  crime  and 
the  standard  of  judgment  was  based  as  we  have 
seen  upon  the  amount  of  intimidation  required 
and  the  injury  done  to  society.  The  penalty  for 
each  crime  was  predetermined  by  the  penal  code 
prepared  by  the  legislature  and  the  only  duty  of  the 
judge  was  to  mete  out  punishment  in  accordance 
with  this  code  as  soon  as  guilt  had  been  proved. 
This  was  the  original  form  of  the  theory  of  the  clas- 
sical school  and  it  was  first  exemplified  in  the 
French  penal  code  of  1791.  That  it  was  in  har- 
mony with  the  spirit  of  the  time  is  shown  in  the 
following  passage :  "This  purely  objective  penal  sys- 
tem is  what  it  has  been  agreed  to  call  the  classical 
theory,  not  in  the  traditional  sense,  but  as  conform- 
ing to  this  spirit  of  abstraction  and  of  rational  gen- 
eralization which  has  remained  the  characteristic 
of  intellectual  education  in  France  for  at  least  two 
centuries.  At  last  there  is  taking  place  to-day 
against  this  classicism  in  every  order  of  ideas  a 


CRIMINAL    PROCEDURE 

reaction  to  which  the  work  of  Taine  and  all  the 
historical  school  will  have  contributed  powerfully."1 

Gradually  modifications  crept  into  the  practise  of 
this  school.  It  was  recognized  that  exceptions 
must  be  made  to  the  theory  of  penal  responsibility 
in  case  of  mental  alienation,  extreme  youth,  etc. 
Consequently  punishment  and  guilt  were  now  de- 
termined by  the  degree  of  responsibility.  This 
theory  has  sometimes  been  called  neoclassical. 
"Since  responsibility  was  founded  upon  the  idea  of 
liberty,  justice  required  that  the  penalty  should  be 
proportioned  to  the  degree  of  liberty.  Justice  re- 
quired the  penalty  should  be  entirely  removed 
where  liberty  was  lacking.  ..  .It  is  what  might  be 
called  the  neoclassical  theory."2 

Another  modification  has  been  made  by  the  so- 
called  correctionalist  school  which  has  attempted 
to  utilize  punishment  for  the  moral  and  juridical  re- 
formation of  the  criminal.  As  we  have  seen  this 
tendency  has  been  very  strong  in  America.  But 
this  use  of  punishment  has  been  made  without  deny- 
ing the  fundamental  principles  of  the  classical 
school.  In  fact  these  principles  remain  essentially 
the  same  as  when  formulated  by  Beccaria  in  1764. 

The  classical  school  has  laid  claim  to  having 
founded  a  science  of  criminology  and  as  compared 
with  what  preceded  it  has  some  justification  for  its 
claim.  In  the  place  of  irregular  methods  of  pro- 
cedure and  absurd  methods  of  testing  evidence  it 

1  R.  Saleilles:    L'individualisation  de  la  peine,  Paris,  1898, 
p.  49. 

2  Saleilles,  Op.  cit.  pp.  70-71. 

16 


THE    SCI.ENCE    OF    CRIMINOLOGY 

has  substituted  an  orderly  procedure  and  rational 
rules  of  evidence.  It  has  classified  crimes  quite 
accurately  according  to  its  own  theory  of  punish- 
ment. It  has  endeavored  to  keep  criminal  treat- 
ment well  within  the  social  need,  thus  conserving 
the  fundamental  rights  and  liberties  of  the  individ- 
ual. But  this  school  was  founded  before  the  great 
modern  development  of  the  biological  sciences  and 
has  been  very  slightly  influenced  by  this  develop- 
ment. It  has  to  a  slight  extent  accepted  the  con- 
clusions of  the  higher  branches  of  the  biological 
sciences  which  study  the  physiological  and  psycho- 
logical characteristics  of  man  and  differentiate  by 
so  doing  the  types  of  men.  But  to  accept  these 
conclusions  to  any  great  extent  would  be  to  destroy 
the  fundamental  theory  of  this  school,  namely,  that 
the  treatment  of  the  criminal  is  to  be  determined 
by  the  crime  committed  and  not  by  the  nature  of 
the  criminal. 

It  was  therefore  left  to  a  more  recent  school  of 
criminology  to  utilize  the  results  of  modern  science 
in  developing  a  science  of  criminology.  This 
school,  usually  called  the  positive  school,  was  in- 
augurated in  1872  by  the  famous  Italian  anthropol- 
ogist Cesare  Lombroso.  Believing  it  necessary  to 
know  the  criminal  in  order  to  understand  the  causes 
of  his  crime,  he  spent  the  years  from  1872  to  1876 
in  studying  the  anthropological  characteristics  of 
prisoners  in  Italian  penitentiaries.  In  1876  he  pub- 
lished the  results  of  his  work  in  his  book  on  crim- 
inal man  which  at  first  remained  almost  unnoticed. 
But  in  1878  its  second  edition  was  accompanied  by 
2  17 


CRIMINAL    PROCEDURE 

the  appearance  of  two  monographs  which  supple- 
mented the  anthropological  studies  of  Lombroso 
from  the  side  of  law  and  of  sociology.  Raffaele 
Garofalo  published  an  essay  in  which  he  declared 
that  the  dangerousness  of  the  criminal  was  the 
criterion  by  which  society  should  be  guided  in  its 
fight  against  crime.  Enrico  Ferri  published  a 
monograph  in  which  he  denied  the  doctrine  of  free 
will  and  personal  responsibility  and  declared  that 
the  science  of  criminology  must  look  to  the  life  of 
society  for  its  facts.  In  1881  Ferri  published  the 
first  edition  of  his  great  work  on  criminal  sociology, 
and  in  1885  Garofalo  published  his  work  on  crim- 
inology. These  books  still  more  firmly  established 
this  new  school  of  criminology.  Because  these 
three  men  and  others  who  have  contributed  to  the 
work  of  this  school  are  Italians  it  has  sometimes 
been  called  the  Italian  school  of  criminology.  But 
this  is  not  an  accurate  title  since  it  has  adherents 
all  over  Europe  and  is  being  rapidly  developed  in 
France,  Germany  and  in  other  countries  as  well  as 
in  Italy. 

The  word  "positive"  when  used  in  the  name  of 
the  positive  school  of  criminology  has  the  same 
significance  that  it  has  in  the  phrase  "positive 
science."  Modern  science  is  frequently  called 
positive  because  it  uses  a  method  which  brings 
positive  and  definite  results.  In  medieval  times  it 
was  customary  to  base  a  system  of  philosophy  up- 
on a  priori  assumptions.  As  soon  as  the  assump- 
tions were  disproved  the  system  of  philosophy  went 
to  pieces.  Thus  system  after  system  of  philosophy 
18 


THE    SCIENCE    OF    CRIMINOLOGY 

has  been  built  up  with  much  labor  and  then  dis- 
appeared leaving  little  or  nothing  behind.  But 
modern  science  has  adopted  the  inductive  method. 
It  has  first  sought  the  facts.  There  has  frequently 
been  difference  of  opinion  as  to  the  significance  of 
certain  facts  and  many  interpretations  have  proved 
to  be  false.  But  the  facts  if  carefully  verified  have 
remained  as  a  permanent  heritage  which  has  served 
as  a  basis  upon  which  to  build.  As  a  sufficient 
number  of  phenomena  have  been  observed,  the  laws 
in  accordance  with  which  they  act  have  been  deter- 
mined. Thus  a  more  or  less  durable  scientific 
structure  has  been  constructed. 

This  positive,  inductive  method  was  first  applied 
to  the  inorganic  sciences  with  fruitful  results.  It 
was  then  extended  to  the  lower  of  the  organic  or 
biological  sciences  and  finally  to  those  more  com- 
plex sciences  which  deal  with  human  and  social  phe- 
nomena. Against  this  there  has  been  a  good  deal 
of  outcry  since  it  denied  the  belief  that  because 
man  has  moral  liberty  he  is  radically  different  from 
the  rest  of  the  universe  and  not  under  the  same 
laws.  But  the  development  of  social  science  has 
furnished  strong  evidence  that  human  and  social 
phenomena  also  are  governed  by  law,  though  on  ac- 
count of  the  complexity  of  the  phenomena  it  has 
not  been  possible  to  determine  their  laws  very  defi- 
nitely. 

The  application  of  the   positive  method  to  the 

study  of  crime  has  shown,  as  already  stated,  that 

the  classical  school  has  not  developed  a  science  of 

criminology.     According  to  this  school  the  cause 

19 


CRIMINAL    PROCEDURE 

of  crime  exists  in  the  free  will  of  the  individual. 
It  is  not  a  thing  whose  laws  can  be  determined  and 
calculated  like  those  of  physical  phenomena.  The 
classical  school,  therefore,  has  not  developed  a 
science  of  criminology  because  the  workings  of 
moral  free  will  cannot  be  reduced  to  the  terms  of 
scientific  laws.  It  would  seem  as  if  it  was  unnec- 
essary for  the  new  school  to  call  itself  "positive" 
since  it  would  have  been  sufficient  to  call  itself  the 
scientific  school  to  be  differentiated  from  the  clas- 
sical school.  But  the  latter  school  does  not  realize 
that  it  has  forfeited  its  title  to  the  name  scientific 
by  retaining  moral  liberty  as  the  basis  of  penal 
responsibility,  and  it  would  have  insisted  that  it 
was  as  scientific  as  the  scientific  school.  It  there- 
fore became  necessary  for  the  new  school  to 
adopt  some  other  name  in  order  to  differentiate  it- 
self. The  new  scientific  school  of  criminology  will 
have  to  retain  the  name  positive  as  long  as  it  is  in 
a  belligerent  state.  It  is  now  on  the  offensive 
against  the  classical  school  and  the  penal  codes 
and  systems  of  procedure  inspired  by  that  school. 
If  it  wins  in  this  fight  it  can  drop  this  name  and 
become  simply  the  scientific  school  of  criminology 
in  the  sense  that  it  believes  that  crime  is  governed 
by  laws  as  positive  and  definite  as  those  by  which 
other  phenomena  are  governed. 

We  see,  therefore,  that  the  positive  school  has 
given  birth  to  the  new  science  of  criminology. 
What  are  the  fundamental  principles  of  this  school  ? 
We  have  already  indicated  that  it  does  not  accept 
moral  liberty  as  a  basis  for  penal  responsibility. 

20 


THE    SCIENCE    OF    CRIMINOLOGY 

This  does  not  mean  that  the  existence  of  a  free 
will  is  necessarily  denied.  As  a  matter  of  fact 
some  representatives  of  this  school  deny  it  and 
others  do  not.  But  they  all  agree  that  even  if  it 
exists  it  is  something  so  incalculable  in  its  character 
that  it  cannot  be  considered  in  developing  a  science 
of  criminology  and  in  the  practical  treatment  of 
crime. 

Leaving  aside  therefore  the  question  of  free  will 
the  positive  school  studies  the  causes  of  crime  which 
are  tangible  and  can  be  measured.  Some  of  these 
causes  are  inside  and  others  outside  of  the  crim- 
inal. Whether  or  not  a  free  will  has  anything  to 
do  with  it,  the  physical  and  psychical  characteristics 
of  the  criminal  very  frequently  have  a  great  deal 
to  do  with  causing  crime.  The  positive  school 
therefore  establishes  a  subjective  as  well  as  an  ob- 
jective criterion  of  criminality.  We  shall  see  that 
in  the  treatment  of  the  criminal  it  considers  his 
character  of  more  importance  as  a  criterion  than 
that  of  his  crime. 

In  criminal  anthropology  and  sociology  we  take 
up  the  study  of  thesecauses  of  crime.  In  cximinal 
anthropology  the  individual  criminal  is  studied. 
TF~is~  divided  into  criminal  physiology  and  criminal 
psychology.  In  the  first  we  study  the  purely 
physical  characteristics  of  the  criminal,  the  anato- 
mical and  other  hereditary  characteristics  which 
predispose  him  to  become  a  criminal  and  the  physio- 
logical characteristics  which  develop  after  birth. 
It  is  closely  connected  with  medical  science  in  the 
study  of  certain  diseases,  such  as  epilepsy,  neuras- 
21 


CRIMINAL    PROCEDURE 

thenia,  etc.,  which  predispose  an  individual  for 
crime.  In  criminal  psychology  we  study  the  men- 
tal states  of  the  criminal.  This  study  is  very  largely 
in  the  realm  of  psychiatry  since  the  mental  states 
of  the  criminal  are  frequently  abnormal.  Criminal 
sociology  studies  the  social  causes  of  crime.  The 
criminal  sociologist  searches  in  the  environment 
of  the  criminal  for  the  forces  which  have  led  him 
into  crime.  These  forces  are  so  numerous,  so 
varied  in  kind  and  so  complicated  as  to  make  the 
search  very  long  and  difficult. 

On  the  practical  side  we  have  criminal  Juris^ 
prudence  jmd  penology.  In  criminal  jurisprudence 
are  includecTthe  fundamental  principles  of  criminal 
law,  penal  codes  and  criminal  procedure.  Of  these 
three  procedure  is  of  the  greatest  practical  im- 
portance because  it  puts  the  other  two  into  oper- 
ation. As  we  shall  see,  the  application  of  these  new 
principles  will  make  procedure  still  more  important 
in  its  relation  to  criminal  law  and  penal  codes.  For 
these  reasons  we  have  chosen  procedure  as  the 
special  subject  of  this  study,  but  in  the  course  of 
it  we  shall  have  to  devote  some  attention  to  crim- 
inal law  and  penal  codes.  In  jenology  we  study 
the  penal  treatment  inflicted  upon  criminals.  An 
intimate  relation  exists  between  the  study  of  these 
two  subjects  which  should  be  established  in  the. 
practical  operation  of  procedure  and  penal  treat- 
ment. At  the  same  time  a  clear  distinction  must 
be  made  between  them  because  of  the  difference 
in  the  status  of  the  people  with  whom  they  deal. 
Criminal  procedure  is  a  process  of  examination 
22 


THE    SCIENCE    OF    CRIMINOLOGY 

and  segregation  by  means  of  which  it  is  deter- 
mined what  persons  are  in  need  of  penal  treat- 
ment. Penal  systems  and  institutions  are  for 
those  for  whom  it  has  been  decided  that  such  treat- 
ment is  necessary.  This  distinction  has  sometimes 
been  expressed  by  saying  that  procedure  is  for 
honest  people  while  the  pe.nal  code  is  for  criminals. 
Criminal  procedure  and  _Benal_treatment  are 
society's  direct  methods  of  repressing  crime.  But 
the  scientists  of  the  positive  school  have  gone 
further  and  have  undertaken  the  study  of  the  indi- 
rect methods  of  repressing  crime  by  eliminating  its 
causes  from  society.  Believing  that  these  causes 
can  be  more  or  less  definitely  determined  they  wish 
also  to  discover  the  means  by  -which  they  can  be 
suppressed.  In  doing  this  these  scientists  have 
been  entirely  logical  and  have  shown  much  fore- 
sight. It  is  undoubtedly  true  that  more  can  be 
accomplished  towards  suppressing  crime  in  the 
long  run  by  indirect  methods  than  by  the  direct 
jnethods,  and  it  is  greatly  to  the  credit  of  the  scien- 
tists of  the  positive  school  that  they  have  laid  so 
much  emphasis  on  these  indirect  methods.  But  it 
is  doubtful  if  this  study  can  be  included,  strictly 
speaking,  within  the  limits  of  criminology  as  some 
of  these  scientists  have  done.  It  belongs  rather 
to  the  study  of  social  hygiene  which  is  the  practical 
side  of  sociology.  It  is  a  study  which  goes  very 
far  afield  in  the  social  sciences.  To  it  all  these 
sciences  contribute  and  of  these  the  new  science  of 
criminology  may  contribute  the  most,  but  it  can 
hardly  claim  to  include  it. 
23 


CHAPTER  II 
CRIMINAL  ANTHROPOLOGY  AND  SOCIOLOGY 

The  leader  of  the  positive  school  of  criminology 
has  been  the  veteran  Italian  criminal  anthropolo- 
gist, Lombroso.  More  than  any  other  man  he  has 
stimulated  the  development  of  the  new  science  of 
criminology.  His  original  and  versatile  genius 
and  aggressive  personality  have  led  in  this  great 
movement  towards  the  application  of  the  positive 
method  to  the  problem  of  crime.  As  a  pioneer  in 
the  anthropological  study  of  the  criminal  he  was 
bound  to  make  mistakes  and  his  impetuous  temper- 
ament leading  him  sometimes  to  generalizations 
drawn  too  hastily  has  tended  to  increase  the  number 
of  these  mistakes.  On  account  of  these  mistakes 
as  well  as  because  he  has  been  a  pioneer,  he  has  suf- 
fered from  a  great  deal  of  criticism.  But  with  the 
aid  of  these  criticisms,  the  researches  of  others  and 
his  own  further  researches  he  has  been  able  to 
correct  most  of  these  mistakes  and  to  develop  a 
well-rounded  theory  of  the  anthropological  charac- 
teristics of  the  criminal.  His  great  work  on  criminal 
man1  is  the  most  synthetic  study  of  this  subject 
which  has  yet  been  made  and  in  it  can  be  traced  the 

lL'homme  criminel,  Paris,   1895. 
24 


ANTHROPOLOGY   AND    SOCIOLOGY 

development  of  his  theory.  We  shall  therefore 
devote  the  first  part  of  this  chapter  to  a  summary 
of  the  data  and  conclusions  of  this  work. 

A  quotation  from  Lombroso's  opening  speech  at 
the  Sixth  Congress  of  Criminal  Anthropology  at 
Turin  in  April,  1906,  will  give  the  key  to  the  first 
stage  in  the  development  of  this  theory:  "In  1870 
I  was  carrying  on  for  several  months  researches 
in  the  prisons  and  asylums  of  Pavia  upon  cadavers 
and  living  persons,  in  order  to  determine  upon  sub- 
stantial differences  between  the  insane  and  crim- 
inals, without  succeeding  very  well.  Suddenly,  the 
morning  of  a  gloomy  day  in  December,  I  found  in 
the  skull  of  a  brigand_a  very  long  series  of  atavistic. 
anomalies,  above  all  an  enormous  middle  occipital 
fossa  and  a  hypertrophy  of  the  vermis  analogous 
to  those  that  are  found  in  inferior  vertebrates.  At 
the  sight  of  these  strange  anomalies,  as  a  large  plain 
appears  under  an  inflamed  horizon,  the  problem  of 
the  nature  and  of  the  origin  of  the  criminal  seemed 
to  me  resolved ;  the  characters  of  primitive  men  and 
of  inferior  animals  must  be  reproduced  in  our  times. 
And  many  facts  seemed  to  confirm  this  hypothesis, 
above  all  the  psychology  of  the  criminal ;  the  fre- 
quency of  tattooing  and  of  the  professional  slang; 
the  passions  as  much  more  fleeting  as  they  are  more 
violent,  above  all  that  of  vengeance;  the  lack  of 
foresight  which  resembles  courage  and  courage 
which  alternates  with  cowardice,  and  idleness  which 
alternates  with  the  passion  for  play  and  activity."1 

1  In  the  Archives  d'anthropologie  criminelle,  Lyons,  June, 
1906. 

25 


CRIMINAL    PROCEDURE 

His  first  conception  of  the  criminal  which  was 
greatly  modified  later  on,  was  as  an  atavistic  phe- 
nomenon reproducing  a  type  of  the  past.  In 
order  to  find  the  origin  of  this  atavistic  phenomenon 
he  goes  back  not  only  to  savage  man  but  also  to 
animals  and  even  to  plants. 

Crime  and  criminals  are,  strictly  speaking,  human 
phenomena  and  are,  therefore,  not  to  be  found  out- 
side of  the  human  race.  But  when  a  criminal  dis- 
plays a  strong  instinct  for  crime  based  upon  phy- 
siological and  psychological  characteristics  of  a  low 
order  it  is  necessary  to  search  in  the  lower  species 
for  characteristics  which  correspond  to  those  of 
the  criminal.  The  acts  which  result  from  these 
characteristics  Lombroso  calls  the  equivalents  of 
crime.  Among  plants  he  finds  such  equivalents  in 
the  habits  of  the  insectivorous  plants.  It  is  ques- 
tionable, however,  if  the  so-called  "murders"  of 
insects  by  these  plants  can  be  considered  as  equiva- 
lents of  crime  since  they  are  committed  by  one 
species  against  another  and  belong  in  the  same 
category  with  man's  habit  of  eating  animals  and 
plants.  But  among  animals  are  to  be  found  verit- 
able equivalents  of  crime  in  acts  contrary  to  the 
general  habits  and  welfare  of  a  species  by  one  of 
its  members.  Cannibalism,  infanticide  and  par- 
ricide frequently  occur,  while  murder,  maltreatment 
and  theft  are  used  to  procure  food,  to  secure  com- 
mand and  for  many  other  reasons.  In  the  past 
the  idea  of  crime  committed  by  animals  has  been 
so  strong  that  in  ancient  times  and  in  the  Middle 
Ages  animals  were  frequently  condemned  accord- 
26 


ANTHROPOLOGY   AND    SOCIOLOGY 

ing  to  juridical  forms  for  acts  harmful  to  man. 
Various  causes  for  these  equivalents  of  crime  among 
animals  have  been  noted,  as,  for  example,  con- 
genital anomalies  of  the  brain.  Veterinary  surgeons 
recognize  these  anomalies  and  give  them  as  causes 
for  the  misbehavior  of  horses.  Other  causes  are 
antipathy  causing  murder,  old  age  resulting  in  ill 
temper,  sudden  anger,  physical  pain,  etc. 

Not  only  the  equivalents  of  crime  but  those  of 
punishment  also  have  been  noted  among  the  lower 
species.  Many  cases  are  on  record  of  a  group  of 
animals  having  torn  to  pieces  one  of  its  members 
who  had  committed  an  act  contrary  to  the  welfare 
of  the  group  or  had  failed  in  performing  its  duties 
towards  the  group.  In  this  blind  act  of  vengeance 
we  see  the  embryo  of  the  form  of  social  reaction 
called  punishment. 

There  are,  also,  many  characteristics  of  the  lower 
species  which,  because  they  are  natural  and  normal 
to  them,  cannot  be  called  the  equivalents  of  crime, 
but  which  when  reproduced  by  atavism  among  civ- 
ilized men  become  criminal.  The  same  is  true  of 
many  characteristics  of  savages.  For  example, 
homicide  is  frequently  practised  under  social  sanc- 
tion, such  as  infanticide,  murder  of  the  aged,  of 
women,  and  of  the  sick,  religious  sacrifices,  etc., 
while  cannibalism  is  prevalent  in-  many  tribes. 
Theft  also  exists  under  social  sanction  though  it  is 
not  so  common,  because  the  institution  of  private 
property  is  not  highly  developed  among  savages. 
The  veritable  crimes  among  the  savages  are  those 
againpt  usage  in  which  an  established  custom  or 
27 


CRIMINAL    PROCEDURE 

religious  rite  is  violated.  These  crimes  aroused 
vengeance  which  was  at  first  private  and  then  re- 
ligious and  juridical. 

In  like  manner  as  among  the  savages  character- 
istics are  to  be  found  in  the  child  in  a  normal  fashion 
which  would  be  criminal  in  an  adult,  such  as  anger, 
vengeance,  jealousy,  lying,  cruelty,  lack  of  fore- 
sight, etc.  For  the  first  year  or  more  of  its  life  a 
child  lacks  a  moral  sense  and  its  development  is 
determined  largely  by  its  surroundings.  There 
are,  furthermore,  many  abnormal  children  in  whom 
a  tendency  to  crime  manifests  itself  early.  Among 
seventy-nine  children  under  eleven  years  of  age 
confined  in  houses  of  correction,  Lombroso  found 
only  seven  who  had  nothing  abnormal  in  their 
constitution.  Twenty-seven  out  of  fifty-nine  about 
whose  heredity  information  could  be  obtained  had 
an  abnormal  heredity. 

These  few  citations  with  regard  to  the  charac- 
teristics both  normal  and  abnormal  of  the  lower 
species,  savages  and  children  indicate  how  abnormal 
is  the  heredity  of  many  criminals.  Lombroso  now 
proceeds  to  the  study  of  the  constitution  which  the 
criminal  inherits,  of  which  study  only  the  briefest 
summary  can  be  given  here. 

The  first  series  of  these  characteristics  is  the 
anatomical.  The  study  of  three  hundred  and 
eighty-three  skulls  of  criminals  gives  him  the  re- 
sults which  he  sums  up  in  the  following  words: 
"On  considering  the  results  that  these  383  skulls 
give  us  it  is  found  that  the  lesions  most  frequent 
are:  great  prominence  of  the  superciliary  arches. 
28 


ANTHROPOLOGY   AND    SOCIOLOGY 

58.2% ;  anomaly  in  the  development  of  the  wisdom 
teeth,  44.6% ;  diminution  of  the  capacity  of  the 
skull,  32.5%;  synostosis  of  the  sutures,  28.9%; 
retreating  forehead,  28% ;  hyperostosis  of  the 
bones,  28.9%;  plagiocephaly,  23.1%;  wormian 
bones,  22% ;  simplicity  of  the  sutures,  18.4% ; 
prominence  of  the  occipital  protuberance,  16.6% ; 
the  middle  occipital  fossa,  16%  ;  symbolic  sutures, 
13.6%  ;  flattening  of  the  occipital,  13.2% ;  osteo- 
phytes  of  the  clivus,  10.1%;  the  Inca's  or  epactal 
bone,  10.5  %.'n  A  union  of  many  of  these  anoma- 
lies is  to  be  found  in  the  same  skull  in  a  proportion 
of  43%,  while  21%  have  single  anomalies.  But 
these  figures  would  have  little  value  if  not  com- 
pared with  corresponding  figures  for  non-criminals. 
Such  a  comparison  results  in  destroying  the  sig- 
nificance of  some  of  these  anomalies,  since  they 
prove  to  exist  in  about  the  same  proportion  among 
the  latter.  "But  there  are  others,  on  the  contrary, 
which  are  present  in  a  double  or  triple  proportion 
in  the  criminals.  Such  are,  for  example,  sclerosis, 
the  epactal  bone,  asymettry;  the  retreating  fore- 
head, exaggeration  of  the  frontal  sinus  and  the 
superciliary  arches,  oxicephaly,  the  open  internasal 
suture,  anomalous  teeth,  asymettries  of  the  face, 
and  above  all  the  middle  occipital  fossa  among 
males,  the  fusion  of  the  atlas  and  the  anomalies  of 
the  occipital  opening."2  Comparison  with  the 
skulls  of  the  insane  shows  that  criminals  surpass 
the  insane  in  most  of  the  cranial  anomalies.  Com- 
parison with  savage  and  prehistoric  skulls  shows 

*Op.  tit.  Vol.  I,  p.  155.  *Op.  cit.  Vol.  I,  p.  161. 

29 


CRIMINAL    PROCEDURE 

the  atavistic  character  of  some  of  these  anomalies. 
"Atavism,  however,  does  not  permit  us  to  explain 
either  the  frequent  obliquity  of  the  skull  and  of  the 
face,  or  the  fusion  and  welding  of  the  atlas  with 
the  occipital,  or  the  plagiocephaly,  or  the  exag- 
gerated sclerosis,  anomalies  which  seem  to  be  the 
result  of  an  error  in  the  development  of  the  foetal 
skull,  or  a  product  of  diseases  having  slowly 
evolved  in  the  nervous  centers."1  As  to  the  signi- 
ficance of  these  cranial  anomalies  he  says:  "Is  it 
possible  that  individuals  afflicted  with  so  great  a 
number  of  alterations  should  have  the  same  senti- 
ments as  men  with  a  skull  entirely  normal?  And 
note  that  these  cranial  alterations  bear  only  upon 
the  most  visible  modifications  of  the  intellectual 
center,  the  alterations  of  volume  and  of  form."2 

A  study  of  the  convolutions  of  the  brains  of 
criminals  reveals  many  anomalies  of  which  he  says : 
"It  would  be  too  rash  to  conclude  that  at  last  have 
been  found  with  certainty  anomalies  peculiar  to  the 
cerebral  circumvolutions  of  criminals ;  but  it  can 
very  well  be  said  already  that  in  criminals  these 
anomalies  are  abundant  and  are  of  two  orders :  some 
which  are  different  from  every  normal  type,  even 
inferior,  as  the  transverse  grooves  of  the  frontal 
lobe,  found  by  Flesch  in  some  cases,  and  so  prom- 
inent that  they  do  not  allow  the  longitudinal  grooves 
to  be  seen ;  others  are  deviations  from  the  type,  but 
recall  the  type  of  lower  animals,  as  the  separation 
of  the  calcarine  fissure  from  the  occipital,  the  fissure 

1Op.  cit.  Vol.  I,  p.  1 68.  2Op.  cit.  Vol.  I,  p.  174. 

30 


ANTHROPOLOGY   AND    SOCIOLOGY 

of  Sylvius  which  remains  open,  the  frequent  forma- 
tion of  an  operculum  of  the  occipital  lobe."1 

The  histology  of  the  criminal  brain  also  shows 
many  anomalies  due  in  most  cases  to  arrested  de- 
velopment. Anomalies  of  the  skeleton,  heart,  liver, 
genital  organs  and  stomach  are  also  noted. 

He  then  passes  to  the  study  of  the  anthropometry 
and  physiognomy  of  five  thousand  nine  hundred 
and  seven  criminals  examined  by  himself  and  about 
a  dozen  other  criminologists.  In  the  anthropomet- 
ric  measurements  it  may  be  noted  that  the  height 
usually  reproduces  the  regional  type,  that  the  reach 
from  fingertip  to  fingertip  with  the  arms  out- 
stretched is  usually  superior  to  the  height,  an 
atavistic  characteristic,  frequent  lefthandedness, 
the  prehensile  foot  in  which  the  great  toe  is  mobile 
and  is  removed  an  unusually  long  distance  from  the 
other  toes,  another  atavistic  characteristic,  preco- 
cious wrinkles,  absence  of  baldness,  a  low  and  nar- 
row forehead,  large  jaws,  etc.  In  the  physiognomy 
he  discusses  peculiarities  of  the  hair,  iris,  ears,  nose, 
teeth,  etc.,  noting  differences  between  different 
kinds  of  criminals.  ''In  general,  many  criminals 
have  outstanding  ears,  abundant  hair,  a  sparse 
beard,  enormous  frontal  sinuses  and  jaws,  a  square 
and  projecting  chin,  broad  cheek-bones,  frequent 
gestures,  in  fact  a  type  resembling  the  Mongolian 
and  sometimes  the  Negro."2 

In  summarizing  the  anatomical  study  of  the  crim- 
inal he  says:  "The  study  of  the  living,  in  short, 

*0p.  cit.  Vol.  I,  p.  185.  "Op.  cit.  Vol.  I,  p.  222. 

31 


CRIMINAL    PROCEDURE 

confirms,  although  less  exactly  and  less  constantly, 
this  frequency  of  microcephalies,  of  asymmetries, 
of  oblique  orbits,  of  prognathisms,  of  frontal  sin- 
uses developed  as  the  anatomical  table  has  shown 
us.  It  shows  new  analogies  between  the  insane, 
savages  and  criminals.  The  prognathism,  the  hair 
abundant,  black  and  frizzled,  the  sparse  beard,  the 
skin  very  often  brown,  the  oxycephaly,  the  oblique 
eyes,  the  small  skull,  the  developed  jaw  and  zygo- 
mas,  the  retreating  forehead,  the  voluminous  ears, 
the  analogy  between  the  two  sexes,  a  greater  reach, 
are  new  characteristics  added  to  the  characteristics 
observed  in  the  dead  which  bring  the  European 
criminal  near  to  the  Australian  and  Mongolian 
type;  while  the  strabism,  the  cranial  asymmettry 
and  the  serious  histological  anomalies,  the  osteo- 
mates,  the  meningitic  lesions,  hepatic  and  cardiac, 
also  show  us  in  the  criminal  a  man  abnormal  be- 
fore his  birth,  by  arrest  of  development  or  by 
disease  acquired  from  different  organs,  above  all, 
from  the  nervous  centers,  as  in  the  insane;  and 
make  him  a  person  who  is  in  truth  chronically  sick."1 
The  study  of  the  anatomical  characteristics  of 
the  criminal  enabled  him  to  separate  the  born  crim- 
inal from  the  criminal  of  habit,  of  passion  or  of 
occasion  who  is  born  with  very  few  or  no  abnormal 
characteristics.  Leaving  aside  for  the  moment  the 
latter  classes  of  criminals  he  takes  up  the  biological 
and  psychological  characteristics  of  the  born  crim- 
inal, the  first  being  the  psychological  characteristic 
of  tattooing.  "One  of  the  most  characteristic  traits 

1  Op.  dt.  Vol.  I,  p.  262. 

32 


ANTHROPOLOGY   AND    SOCIOLOGY 

of  primitive  man,  or  of  the  savage,  is  the  facility 
with  which  he  submits  himself  to  this  operation, 
surgical  rather  than  esthetic,  and  of  which  the  name 
even  has  been  furnished  to  us  by  an  Oceanic  idiom."1 
By  means  of  the  statistics  of  13,566  individuals  of 
which  4,376  were  honest,  6,347  criminal  and  2,943 
insane  he  shows  that  tattooing  is  quite  common  in 
some  of  the  inferior  classes  of  society  but  is  most 
common  among  criminals.  "It  may  even  be  said 
that,  for  these  last,  it  constitutes  on  account  of  its 
frequency  a  specific  and  entirely  new  anatomico- 
legal  characteristic."1  He  cites  many  causes  for 
tattooing,  such  as  religion,  imitation,  carnal  love, 
vengeance,  idleness,  vanity,  and  above  all  atavism. 
"But  the  first,  the  principal  cause  which  has 
spread  this  custom  among  us,  is,  in  my  opinion, 
atavism,  or  this  other  kind  of  historic  atavism  called 
tradition.  Tattooing  is  in  fact  one  of  the  essential 
characteristics  of  primitive  man  and  of  the  man  who 
is  still  living  in  a  savage  state."2 

After  noting  peculiarities  of  the  molecular  ex- 
change as  indicated  in  the  temperature,  pulse  and 
urine  he  discusses  the  general  sensibility  of  the 
criminal.  "The  special  taste  of  criminals  for  a 
painful  operation  so  long  and  so  full  of  danger  as 
tattooing,  the  large  number  of  wounds  their  bodies 
present,  have  led  me  to  suspect  in  them  a  physical 
insensibility  greater  than  among  most  men,  an  in- 
sensibility like  that  which  is  encountered  in  some 
insane  persons  and  especially  in  violent  lunatics."3 

1  Op.  dt.  Vol.  I,  p.  266.  *  Op.  dt.  Vol.  I,  p.  295. 

*Op.  cit.  Vol.  I,  p.  310. 
3  33 


CRIMINAL    PROCEDURE 

Numerous  experiments  have  revealed  obtuseness 
in  the  sensibility  of  many  parts  of  the  body.  Pecu- 
liarities have  been  noted  in  the  visual  acuteness  and 
visual  field,  in  the  smelling,  the  taste  and  the  hear- 
ing, in  the  motility,  in  the  reaction  to  various  ex- 
ternal influences,  and  in  the  vaso-motor  reflexes. 
"From  all  of  these  facts  it  could  be  deduced  that 
nearly  all  the  different  kinds  of  sensibility,  tactile, 
olfactory  and  of  the  taste  are  obtuse  in  the  criminal ; 
even  in  the  occasional  criminal  as  compared  with 
the  normal  man;  while  in  the  criminal  as  in  the 
insane  and  the  hysterical,  the  sensibility  to  metals, 
to  the  magnet  and  to  the  atmosphere  is  exaggerated. 
Their  physical  insensibility  recalls  quite  forcibly  that 
of  savage  peoples,  who  can  face,  in  the  initiations  to 
puberty,  tortures  which  a  man  of  the  white  race 
could  never  endure."1 

From  this  study  showing  the  marked  analgesia 
of  the  criminal  he  passes  to  his  affective  sensi- 
bility. "In  general,  in  criminal  man,  the  moral  in- 
sensibility is  as  great  as  the  physical  insensibility; 
undoubtedly  the  one  is  the  effect  of  the  other.  It 
is  not  that  in  him  the  voice  of  sentiment  is  entirely 
silent,  as  some  literary  men  of  a  low  order  suppose ; 
but  it  is  certain  that  the  passions  which  make  the 
heart  of  the  normal  man  beat  with  the  greatest 
force,  are  very  feeble  in  him.  The  first  sentiment 
which  is  extinguished  in  these  beings  is  that  of  pity 
for  the  suffering  of  another,  and  that  is  just  because 
they  themselves  are  insensible  to  suffering."2 

He    then    discusses   various   psychological   char- 

1  Op,  cit.  Vol.  I,  p.  346.  a  Op.  cit.  Vol.  I,  p.  356. 

34 


ANTHROPOLOGY   AND    SOCIOLOGY 

acteristics  of  the  criminal,  showing  his  instability, 
vanity,  vengefulness,  cruelty,  love  for  wine  and 
gambling,  lasciviousness,  laziness,  lack  of  foresight, 
etc.  He  shows  that  his  intelligence  varies  greatly 
among  the  different  classes  of  criminals.  He  dis- 
cusses at  some  length  the  argot  or  professional  slang 
of  criminals.  "Atavism  contributes  more  to  this 
than  any  other  thing.  They  talk  differently  from 
us  because  they  do  not  feel  in  the  same  way;  they 
talk  like  savages  because  they  are  veritable  savages 
in  the  midst  of  this  brilliant  European  civilization."1 
In  a  similar  manner  he  studies  the  hieroglyphics, 
writing  and  literature  of  criminals. 

Having  described  the  character  of  the  born  crim- 
inal in  his  first  volume,  Lombroso  takes  up  in  the 
second  volume  certain  analogies  with  the  born 
criminal,  and  then  deals  with  the  other  classes  of 
criminals.  And  first  he  deals  with  the  analogy  and 
indeed  the  identity  which,  he  believes,  exists  be- 
tween congenital  criminality  and  moral  imbecility. 
"The  characteristics  of  the  born  criminal  that  we 
have  studied  in  the  first  volume  are  the  same  as 
those  of  the  moral  imbecile."2  Under  the  name  of 
the  moral  imbecile,  psychiatrists  have  classified  the 
insane  whose  most  prominent  pathological  character- 
istic is  an  absence  of  the  moral  sense.3  The  famous 
English  alienist,  Henry  Maudsley,  has  described  this 
class,  in  the  following  words:  "Notwithstanding 
prejudices  to  the  contrary,  there  is  a  disorder  of 

1Op.  dt.  Vol.  I,  497.  'Op.  dt.  Vol.  II,  p.  i. 

•Dallemagne:  Theories  de  la  criminalite,  p.  64,  Paris,  1896. 

35 


CRIMINAL    PROCEDURE 

the  mind  in  which,  without  illusion,  delusion,  or 
hallucination,  the  symptoms  are  mainly  exhibited 
in  a  perversion  of  those  mental  faculties  which  are 
usually  called  the  active  and  moral  powers — the 
feelings,  affections,  propensities,  temper,  habits,  and 
conduct.  The  affective  life  of  the  individual  is 
profoundly  deranged,  and  his  derangement  shows 
itself  in  what  he  feels,  desires,  and  does.  He  has 
no  capacity  of  true  moral  feeling;  all  his  impulses 
and  desires,  to  which  he  yields  without  check,  are 
egoistic;  his  conduct  appears  to  be  governed  by 
immoral  motives,  which  are  cherished  and  obeyed 
without  any  evident  desire  to  resist  them.  There 
is  an  amazing  moral  insensibility.  The  intelligence 
is  often  acute  enough,  being  not  affected  otherwise 
than  in  being  tainted  by  the  morbid  feelings  under 
the  influence  of  which  the  persons  think  and  act; 
indeed  they  often  display  an  extraordinary  ingen- 
uity in  explaining,  excusing,  or  justifying  their 
behavior,  exaggerating  this,  ignoring  that,  and  so 
coloring  the  whole  as  to  make  themselves  appear 
the  victims  of  misrepresentation  and  persecution. 
Their  mental  resources  seem  to  be  greater  some- 
times than  when  they  are  well,  and  they  reason  most 
acutely,  apparently  because  all  their  intellectual 
faculties  are  applied  to  the  justification  and  grati- 
fication of  their  selfish  desires.  One  cannot  truly 
say,  however,  that  the  intellect  is  quite  clear  and 
sound  in  any  of  these  cases,  while  in  some  it  is 
manifestly  weak."1  Such  a  person  may  very  easily 

1  Responsibility    in    Mental    Disease,    London,     1874,    pp. 
171-172. 

36 


ANTHROPOLOGY   AND    SOCIOLOGY 

become  a  criminal.  "A  person  who  has  no  moral 
sense  is  naturally  well  fitted  to  become  a  criminal, 
and  if  his  intellect  is  not  strong  enough  to  convince 
him  that  crime  will  not  in  the  end  succeed,  and 
that  it  is,  therefore,  on  the  lowest  grounds  a  folly, 
he  is  very  likely  to  become  one."1 

These  moral  imbeciles,  however,  vary  greatly 
among  themselves  with  regard  to  their  other  facul- 
ties and  therefore  do  not  form  a  uniform  type.  It 
has,  therefore,  been  questioned  whether  moral  im- 
becility is  a  morbid  entity  and  whether  it  is  not 
only,  as  Baer  has  said,  a  symptom  common  to  various 
cerebral  diseases.  Lombroso,  however,  apparently 
regards  it  as  such  an  entity,  for  he  identifies  it  with 
the  born  criminal  whom  he  considers  a  distinct 
type.  He  cites  a  good  deal  of  evidence  in  support 
of  this  identification.  "One  of  the  things  which 
prove  indirectly  the  identity  of  moral  imbecility  and 
of  crime,  and  which  at  the  same  time  explain  to  us 
the  doubts  with  which  the  alienists  have  been  pos- 
sessed up  to  this  day,  is  the  extreme  rarity  of  the 
first  in  the  insane  asylums,  and  its  great  frequency, 
on  the  contrary,  in  the  prisons."2  After  support- 
ing this  statement  with  statistics  he  demonstrates 
many  likenesses  between  the  moral  imbecile  and  the 
born  criminal,  with  regard  to  the  weight,  the  skull, 
the  physiognomy,  analgesia,  tactile  sensibility,  tat- 
tooing, vascular  reaction,  affectibility,  etc.  By  con- 
tending that  there  is  an  identity  between  the  moral 
imbecile  and  the  born  criminal  he  does  not,  of  course, 
mean  that  every  moral  imbecile  is  a  criminal.  For 

1Maudsley:  Op.  cit.  p.  58.       *Op.  cit.  Vol.  II,  pp.  3-4- 
37 


CRIMINAL    PROCEDURE 

that  matter  not  every  person  born  with  a  criminal 
temperament  becomes  a  criminal,  for  external  cir- 
cumstances may  resist  and  overcome  the  innate 
criminal  tendencies.  But  he  believes  that  in  physical 
constitution  and  mental  characteristics  the  two  are 
fundamentally  alike. 

This  identity  of  the  moral  imbecile  with  the  born  ' 
criminal  is,  he  believes,  still  more  conclusively 
proved  by  a  similar  likeness  which  he  finds  between 
the  criminal  and  the  epileptic.  "The  objection  has 
justly  been  made  against  this  fusion  that  the  cases 
of  true  moral  insanity  that  I  have  been  able  to  study 
are  too  restricted  in  number.  That  is  true;  but  it 
is  after  all  very  natural ;  for,  precisely  because  moral 
imbeciles  are  born  criminals,  they  are  not  found  as 
frequently  in  the  asylums  as  in  the  prisons;  and  it 
is  also  for  that  reason  that  it  is  not  easy  to  establish 
a  comparison.  But  there  exists  in  epilepsy  a  unit- 
ing bond  much  more  important,  much  more  com- 
prehensible, which  can  be  studied  upon  a  great  scale, 
that  unites  and  bases  the  moral  imbeciles  and  the 
born  criminals  in  the  same  natural  family."1 

As  in  the  case  of  the  analogy  between  the  moral 
imbecile  and  the  born  criminal  he  demonstrates 
many  likenesses  between  the  epileptic  and  the  born 
criminal  in  height,  weight,  the  brain,  the  skull,  the 
physiognomy,  the  flat  and  prehensile  foot,  the  sen- 
sibility, the  visual  field,  motility,  tattooing,  etc. 
"Criminality  is  therefore  an  atavistic  phenomenon 
which  is  provoked  by  morbid  causes  of  which  the 
fundamental  manifestation  is  epilepsy.  It  is  very 

*O/>.  dt.  Vol.  II,  pp.  49-50. 
38 


ANTHROPOLOGY  AND    SOCIOLOGY 

true  that  criminality  can  be  provoked  by  other 
diseases  (hysteria,  alcoholism,  paralysis,  insanity, 
phrenastenia,  etc.)  but  it  is  epilepsy  which  gives  to 
it,  by  its  frequency,  by  its  gravity,  the  most  extended 
basis."1 

But  while  all  born  criminals  are  epileptics  not  all 
epileptics  are  born  criminals.  In  all  three,  con- 
genital criminality,  moral  imbecility  and  epilepsy, 
we  find  the  irresistible  force  which  results  in  crime 
or  similar  irresponsible  acts.  "The  perversion  of 
the  affective  sphere,  the  hate,  exaggerated  and  with- 
out motive,  the  absence  or  insufficiency  of  all  re- 
straint, the  multiple  hereditary  tendencies,  are  the 
source  of  irresistible  impulses  in  the  moral  imbecile 
as  well  as  in  the  born  criminal  and  in  the  epileptic."2 

These  two  analogies  between  the  born  criminal 
and  the  moral  imbecile  and  the  epileptic,  mark  the 
second  stage  in  the  development  of  his  theory. 
"The  studies  which  form  the  first  part  of  this  vol- 
ume accord  admirably  with  those  which  have  been 
developed  in  the  second  and  third  of  the  first  vol- 
ume to  make  us  see  in  the  criminal  a  savage  and  at 
the  same  time  a  sick  man."3  In  other  words  he  no 
longer  sees  in  the  born  criminal  only  an  atavistic 
return  to  the  savage,  but  also  arrested  development 
and  disease,  thus  making  the  born  criminal  both  an 
atavistic  and  a  degenerate  phenomenon. 

He  now  passes  to  the  treatment  of  the  classes  of 
criminals  other  than  the  born  criminal.  The  first 
of-  these  is  the  criminal  by  passion.  "Among  the 

*Op.  cit.  Vol.  II,  p.  120.  2Op.  cit.  Vol.  II,  p.  125. 

*Op.  cit.  Vol.  II,  p.  135. 
39 


CRIMINAL    PROCEDURE 

criminals  there  is  a  category  which  is  distinguished 
absolutely  from  all  the  others ;  it  is  this  of  the  crim- 
inals by  passion  who  ought  rather  to  be  called  crim- 
inals by  violence  because  as  we  have  seen  and  as  we 
shall  see  better  still  in  their  etiology,  all  these  crimes 
have  for  substratum  the  violence  of  some  passion."1 
These  criminals  are  quite  rare,  are  usually  young, 
have  few  anomalies  of  the  skull,  a  good  physiog- 
nomy, honesty  of  character,  exaggerated  affectibil- 
ity  as  opposed  to  the  apathy  of  the  born  criminal, 
and  frequent  repentance  after  the  crime,  sometimes 
followed  by  suicide,  or  reformation  in  the  prisons. 
A  larger  percentage  of  them  are  women  than  among 
other  criminals.  "The  passions  which  excite  these 
criminals  are  not  those  which  rise  gradually  in  the 
organism  as  avarice  and  ambition,  but  those  which 
burst  unexpectedly  as  anger,  platonic  or  filial  love, 
offended  honor;  which  are  usually  generous  pas- 
sions and  often  sublime.  On  the  other  hand  those 
which  predominate  in  ordinary  criminals  are  the 
most  ignoble  and  the  most  ferocious  as  vengeance, 
cupidity,  carnal  love  and  drunkenness."2  But  in 
them  as  in  ordinary  criminals  are  found  sometimes 
traces  of  epilepsy  and  impulsive  insanity  shown  by 
the  impetuosity,  suddenness  and  ferocity  of  their 
crimes.  The  frequency  of  suicide  among  criminals 
by  passion  also  indicates  a  pathological  state  of 
mind. 

A  special  kind  of  criminals  by  passion  are  the 
political  criminals.  "In  nearly  all  the  political 
criminals  by  passion  we  have  noticed  an  exaggerated 

1Op.  cit.  Vol.  II,  p.  153.      'Op.  cit.  Vol.  II,  pp.  165-166. 
40 


ANTHROPOLOGY   AND    SOCIOLOGY 

sensibility,  a  veritable  hyperesthesia,  as  in  the  ordi- 
nary criminals  by  passion ;  but  a  powerful  intellect, 
a  great  altruism  push  them  towards  ends  much 
higher  than  those  of  the  latter:  it  is  never  wealth, 
vanity,  the  smile  of  woman  (even  though  often 
eroticism  is  not  lacking  in  them  as  in  Garibaldi, 
Mazzini,  Cavour)  which  impel  them,  but  rather  the 
great  patriotic,  religious,  scientific  ideals."1 

Statistics  show  a  much  higher  proportion  than 
the  average  of  insane  persons  among  criminals  and, 
therefore,  Lombroso  deals  next  with  the  insane 
criminals,  as  a  special  class  of  criminals.  "A  study 
made  upon  100  insane  criminals,  chosen  by  prefer- 
ence among  those  who  had  become  insane  before 
the  crime,  with  the  exception  of  the  epileptics,  has 
shown  to  me  the  frequency  of  the  criminal  type  (that 
is  to  say,  the  presence  of  five  to  six  characteristics 
of  degeneracy,  and  especially,  outstanding  ears 
[oreilles  a  anse],  frontal  sinuses,  a  voluminous  jaw 
and  zygoma,  a  ferocious  look  or  strabism,  a  thin 
upper  lip)  in  the  proportion  of  44%. "2  This  fact, 
however,  does  not  lead  him  to  identify  the  insane 
criminal  with  the  born  criminal,  but  he  finds  numer- 
ous analogies  between  the  two  in  the  weight,  height, 
skull,  tattooing,  etc.,  and  also  many  psychological 
analogies  in  the  manner  of  committing  a  crime.  He 
connects  certain  kinds  of  crime  with  certain  kinds 
of  insanity.  "I  have  just  mentioned  the  existence 
of  certain  kinds  of  insanity  which  reproduce  each 
of  the  sub-species  of  criminality,  so  that  to  the 
juridical  figure  of  incendiarism,  of  homicide,  can 

*Op.  cit.  Vol.  II,  p.  217.  *Op.  cit.  Vol.  II,  p.  254. 

41 


CRIMINAL    PROCEDURE 

be  opposed  the  psychiatric  figure  of  pyromania, 
homicidal  monomania,  paradoxical  sexuality,  etc."1 
Thus  he  opposes  to  the  juridical  figure  of  theft  the 
psychiatric  figure  of  kleptomania ;  to  habitual  drunk- 
enness, dipsomania ;  to  rape  and  pederasty,  sexual 
inversion ;  to  crimes  of  lust,  satyriasis  and  nympho- 
mania;  to  idleness  and  vagabondage,  neurasthenia. 
He  then  discusses  the  psychological  differences  be- 
tween the  born  criminal  and  the  insane  criminal 
with  respect  to  the  different  kinds  of  mental  malady 
and  to  the  differences  in  the  motives  for  crimes  and 
the  manner  of  committing  them.  He  finishes  the 
study  of  the  insane  criminal  with  the  study  of  three 
special  kinds,  the  alcoholic  criminal,  the  hysterical 
criminal  and  the  criminal  mattoid. 

The  last  part  of  his  work  is  devoted  to  the  oc- 
casional criminal.  Of  this  study  he  says :  "If  I 
have  been  forced  to  delay  for  several  years  the  pub- 
lication of  this  book  it  has  been  on  account  of  this 
part  in  particular,  for,  although  in  possession  of 
numerous  documents,  direct  contact  with  the  facts 
failed  me  in  the  measure  that  I  was  trying  to 
approach  myself  to  them.  The  abundance  of  the 
facts  also,  their  excessive  variety  constituted  for 
me  a  cause  of  uncertainty  which  prevented  me  from 
reaching  a  conclusion."2  The  first  group  with 
which  he  deals  is  that  of  the  pseudo-criminals. 
These  criminals  are  those  who  commit  crimes  in- 
voluntarily, who  commit  acts  which  are  -not  per- 
verse or  prejudicial  to  society  but  which  are  called 
crimes  by  the  law,  who  commit  crimes  under  very 

1  Op.  cit.  Vol.  II,  p.  290.  *  Op.  cit.  Vol.  II,'  p.  463. 

42 


ANTHROPOLOGY   AND    SOCIOLOGY 

extraordinary  circumstances,  such  as  for  the  de- 
fense of  the  person,  of  honor,  or  for  the  subsistence 
of  a  family.  These  crimes  are  "rather  juridical 
than  real  because  they  are  created  by  imperfections 
of  the  law  more  than  by  those  of  men;  they  do 
not  awaken  any  fear  for  the  future,  and  they  do 
not  disturb  the  moral  sense  of  the  masses."1 

The  next  group  is  that  of  the  criminaloids. 
"Here  the  accident,  the  all-powerful  occasion  draws 
only  those  who  are  already  somewhat  predisposed 
to  evil."2  The  occasions  out  of  which  these  crimes 
arise  are  the  temptation  to  imitate,  the  constant 
opportunities  offered  by  the  commercial  profession 
for  fraud,  abuse  of  confidence,  etc.,  the  associations 
of  the  prison,  a  passion  less  intense  than  in  the  crim- 
inal by  passion  which  draws  an  honest  man  slowly 
to  crime,  the  criminal  couple  the  stronger  member 
of  which  having  evil  tendencies  perverts  the  weaker, 
epidemic  allurement,  etc.  "These  are  individuals 
who  constitute  the  gradations  between  the  born 
criminal  and  the  honest  man,  or,  better  still,  a 
variety  of  born  criminal  who  has  indeed  a  special 
organic  tendency,  but  one  which  is  less  intense, 
who  has  therefore  only  a  touch  of  degeneracy ;  that 
is  why  I  will  call  them  criminaloids.  But  it  is 
natural  that  in  them  the  importance  of  the  occasion 
determining  the  crime  should  be  decisive  while  it 
is  not  so  for  the  born  criminal  for  whom  it  is  a  cir- 
cumstance with  which  he  can  dispense  and  with 
which  he  often  does  dispense,  as,  for  example,  in 

1  Op.  cit.  Vol.  II,  p.  484.  *  Op.  cit.  Vol.  II,  p.  485. 

43 


CRIMINAL    PROCEDURE 

cases  of  brutal  mischievousness."1  And  this  posi- 
tion of  the  criminaloid  between  the  born  criminal 
and  the  honest  man  is  in  harmony  with  all  natural 
phenomena  "where  the  most  striking  phenomena 
are  in  continuity  with  a  series  of  analogous  phe- 
nomena less  accentuated/'2  just  as  in  the  moral 
sphere  we  have  genius,  talent,  intelligence,  etc.,  and 
in  the  pathology  of  degeneracy,  the  cretin,  the  cre- 
tinous, the  sub-cretin,  the  idiot,  the  mattoid,  the 
imbecile,  etc. 

The  third  group  of  occasional  criminals  is  that  of 
the  habitual  criminal.  "The  greatest  number  of 
these  individuals  is  furnished  by  those  who — normal 
from  birth  and  without  tendencies  or  a  peculiar 
constitution  for  crime — not  having  found  in  the 
early  education  of  parents,  schools,  etc.,  this  force 
which  provokes,  or,  better  said,  facilitates  the  pas- 
sage from  this  physiological  criminality — which  we 
have  seen  belongs  properly  to  an  early  age — to  a 
normal,  honest  life,  fall  continually  lower  into  the 
primitive  tendencies  towards  evil."3  So  that  these 
individuals  without  an  abnormal  heredity  are  led  not 
by  one  circumstance  offering  the  occasion  for  crime 
but  by  a  group  of  circumstances  conditioning  their 
early  life  into  a  career  of  crime. 

Associations  of  criminals  such  as  those  of  brig- 
ands, the  mafia  and  the  camorra  in  Italy,  and  the 
"black  hand"  in  Spain,  etc.,  contain  many  members 
drawn  into  crime  by  their  associates.  In  the  classes 
in  which  on  account  of  wealth,  power,  etc.,  the 

*Op.  cit.  Vol.  II,  p.  512.  'Op.  cit.  Vol.  II,  p.  513. 

8  Op.  cit.  Vol.  II,  p.  534- 

44 


ANTHROPOLOGY  AND    SOCIOLOGY 

conditions  are  against  the  commission  of  crime  the 
criminal  tendencies  of  those  born  with  such  tenden- 
cies remain  latent  or  manifest  themselves  in  other 
ways.  Finally  there  is  a  class  of  epileptoids  in 
whom  there  is  a  substratum  of  epilepsy  which  some- 
times forms  the  basis  for  the  development  of  crim- 
inal tendencies. 

In  the  first  edition  of  his  work  Lombroso  gave 
excessive  weight  to  his  anatomical  and  anthropomet- 
ric  data  which  was  not  very  surprising,  since  they 
were  the  most  obvious  and  the  most  easily  obtain- 
able. This  excessive  emphasis  laid  upon  the 
anatomical  characteristics  of  the  criminal  led  him 
to  distinguish  but  one  type — the  criminal  as  an 
atavistic  phenomenon.  This  immediately  called 
forth  the  charge  of  unilaterality  and  the  idea  still 
exists  that  Lombroso  recognizes  but  one  type  of 
criminal  who  is  the  result  of  a  single  cause,  namely, 
atavism.  But  the  brief  summary  of  his  work  which 
I  have  given  is  sufficient  to  disprove  this. 

We  have  seen  that  in  addition  to  studying  the 
anatomical  characteristics  of  the  criminal  he  makes 
a  lengthy  study  of  his  biological  and  psychological 
characteristics.  He  has  rejected  in  part  the  atavis- 
tic theory  of  crime,  no  longer  considering  atavism 
as  the  only  cause  of  crime  and  has  adopted  the 
theory  of  degeneracy  as  one  of  the  causes.  "In  this 
edition  I  have  demonstrated  that  in  addition  to  the 
characteristics  truly  atavistic  there  are  acquired  and 
entirely  pathological  characteristics ;  facial  asymme- 
try, for  example,  which  does  not  exist  in  the  savage, 
strabism,  inequality  of  the  ears,  dischromatopsy, 
45 


CRIMINAL    PROCEDURE 

unilateral  paresia,  Irresistible  impulses,  the  need 
of  doing  evil  for  the  sake  of  evil,  etc.,  and  this 
sinister  gaiety  which  is  noticeable  in  the  professional 
slang  of  criminals,  and  which,  alternating  with  a 
certain  religiousness,  is  found  so  often  in  epileptics. 
There  may  be  added  meningitis  and  softening  of 
the  brain  which  certainly  do  not  result  from  ata- 
vism."1 

In  his  studies  of  moral  imbecility  and  epilepsy  he 
has  demonstrated  the  analogies  between  these  two 
and  congenital  criminality  and  though  his  identifi- 
cation of  the  moral  imbecile  with  the  born  criminal 
and  of  the  born  criminal  with  the  epileptic  may  be 
disproved  his  demonstration  of  the  pathological 
likenesses  of  the  three  to  each  other  is  incontestable. 
In  his  study  of  the  insane  criminal  he  has  exposed 
the  characteristics  of  another  very  abnormal  crim- 
inal type.  He  has  demonstrated  the  abnormality 
of  certain  of  the  criminals  by  passion  who,  how- 
ever, do  not  constitute  a  distinct  criminal  type.  In 
the  criminaloid  he  has  shown  a  criminal  partially 
abnormal  who,  however,  will  not  commit  a  crime 
until  a  good  opportunity  presents  itself.  The 
habitual  criminal  though  born  without  criminal 
tendencies  has  them  developed  in  him  by  the  cir- 
cumstances of  his  early  life.  Finally,  in  some  of 
the  criminals  by  passion  and  in  the  pseudo-crim- 
inals we  find  entirely  normal  persons  who  have  com- 
mitted crime  under  very  exceptional  circumstances. 
Thus  we  see  how  very  synthetic  is  his  study  of  the 
anthropological  characteristics  of  the  criminal,  since 

1Op.  cit.  Vol.  I,  pp.  XT-XTI. 
46 


ANTHROPOLOGY   AND    SOCIOLOGY 

it  ranges  from  the  most  abnormal  to  the  perfectly 
normal  and  there  borders  upon  the  study  of  the 
social  causes  of  crime  which  he  takes  up  at  great 
length  in  a  third  volume.1 

What  then  is  the  significance  of  this  study  of  the 
criminal  by  Lombroso  and  the  other  criminal 
anthropologists  who  have  been  stimulated  by  him 
and  who  have  in  turn  helped  him?  They  have 
shown  that  a  large  number  of  criminals  are  not 
normal,  many  of  them  being  very  abnormal.  They 
have  distinguished  between  the  different  anthro- 
pological types  of  criminals.  They  have  shown 
that  the  study  of  anthropology,  medical  science, 
psychology  and  psychiatry  is  necessary  to  under- 
stand the  criminal.  The  practical  significance  of 
their  work  for  the  treatment  of  criminals  is  obvious. 
For  the  rational  treatment  of  the  criminal  it  is 
necessary  to  be  acquainted  with  these  sciences  in 
order  in  the  first  place  to  distinguish  the  criminal 
from  normal  and  honest  persons  and  in  the  second 
place  to  determine  the  specific  type  and  character 
of  each  criminal.  A  system  of  criminal  procedure 
which  will  make  possible  such  treatment  is  the  sub- 
ject of  study  in  this  book. 

Lombroso  begins  his  work  with  the  direct  study 
of  the  criminal.  Assuming  that  the  criminals  in 
the  penitentiaries  were  fairly  representative  of  the 
criminal  class  he  carried  on  his  anatomico-biological 
study  among  them,  supplementing  this  study  with 
frequent  comparative  studies  in  other  classes  of 
society.  Garofalo,  another  of  the  three  founders 

1  C.  Lombroso:   Le  crime,  Paris,  1907. 
47 


CRIMINAL    PROCEDURE 

of  the  new  science  of  criminology,  starts  out  from 
a  different  point,  though  arriving  at  similar  con- 
clusions. Since  he  is  a  jurist  he  begins  with  the 
conception  of  a  crime,  but  his  conception  is  not  the 
juridical  one.  "I  think  that  the  point  of  departure 
should  be  the  sociological  conception  of  crime.  But 
we  may  be  told  that  this  is  a  juridical  conception, 
and  that,  consequently,  the  jurists  alone  have  the 
right  to  establish  it.  We  are  not  concerned  here 
with  a  technical  word,  but  with  a  word  which  ex- 
presses an  idea  accessible  to  everyone  whether  he 
is  or  is  not  acquainted  with  the  law.  The  legislator 
has  not  created  this  word ;  he  has  borrowed  it  from 
the  popular  language ;  he  has  not  even  defined  it,  he 
has  only  gathered  together  a  certain  number  of  acts, 
which,  according  to  him,  are  crimes."1 

Crime  is,  therefore,  not  an  artificial  thing  created 
by  the  law  but  a  natural  phenomenon.  "It  is  in  a 
word  the  natural  offense  (del it  naturel)  that  we 
must  establish  in  giving,  of  course,  to  the  word  'na- 
tural' the  meaning  of  what  is  not  'conventional,' 
of  what  exists  in  human  society  independent  of 
the  circumstances  and  exigencies  of  a  given  epoch, 
or  of  the  ideas  peculiar  to  a  legislator."2  But  this 
conception  of  the  "natural  offense"  does  not  mean 
that  there  is  a  group  of  acts  which  have  always 
been  considered  criminal.  History  disproves  this, 
for  it  shows  us  how  much  the  acts  considered 
criminal  have  varied  in  different  ages.  In  order, 
therefore,  to  obtain  a  conception  of  the  "natural 

1  R.  Garofalo :   La  criminologle,  Paris,  1905,  p.  2. 
3  Op,  cit.  pp.  2-3. 

48 


ANTHROPOLOGY   AND    SOCIOLOGY 

offense"  it  is  necessary  to  change  the  method,  to 
abandon  the  analysis  of  deeds  and  to  undertake 
that  of  feelings.  "Crime,  in  fact,  is  always  a 
harmful  act  which,  at  the  same  time,  wounds 
some  of  those  feelings  which  it  has  been  agreed  to 
call  the  moral  sense  of  a  human  aggregation."1 
These  feelings  are,  in  his  opinion,  pity  and  probity. 
"The  element  of  immorality  necessary  in  order  that 
a  harmful  act  should  be  considered  as  criminal  b~y 
public  opinion  is  the  violation  of  that  part  of  the 
moral  sense  which  consists  of  the  fundamental 
altruistic  feelings,  pity  and  probity.  It  is  neces- 
sary, further,  that  the  violation  should  wound,  not 
the  superior  and  most  delicate  part  of  these  feelings, 
but  the  average  measure  in  which  they  are  pos- 
sessed by  a  community,  and  which  is  indispensable 
for  the  adaptation  of  the  individual  to  society.  That 
is  what  we  shall  call  crime  or  natural  offense/'2 
This  he  says,  is  not  a  complete  definition  but  it  in- 
dicates the  distinction  between  crime  and  other 
forms  of  immorality,  namely,  those  that  contain  no 
cruelty  or  improbity. 

The  necessity  which  he  has  signalized  of  aban- 
doning the  analysis  of  deeds  and  undertaking  the 
analysis  of  feelings  requires  the  direct  study  of  the 
criminal,  in  order,  in  the  first  place,  to  determine 
if  there  are  psychic  types  of  men  which  correspond 
to  the  classes  of  crime  indicated,  namely,  those  man- 
ifesting an  absence  of  pity  and  those  manifesting 
an  absence  of  probity,  and,  secondly,  in  order  to 
determine  in  the  case  of  each  criminal  whether  this 

1  Op.  cit.  p.  5  2  op.  dt.  p.  36. 

4  4Q 


CRIMINAL    PROCEDURE 

anomaly  is  irreducible  on  account  of  the  complete 
absence  of  one  or  both  of  these  feelings,  or  whether 
they  still  exist  in  an  enfeebled  state  so  that  the 
anomaly  may  be  attenuated  by  a  change  in  the  con- 
ditions of  existence  which  will  render  the  individual 
better  adapted  to  social  life.  A  review  of  the  data 
of  criminal  anthropology  leads  him  to  the  conclusion 
that  the  existence  of  a  distinct  anthropological 
criminal  type  has  not  yet  been  proved.  "What 
criminal  anthropology  really  lacks  is  the  incontest- 
able proof  that  any  characteristic  of  the  skull  or  of 
the  skeleton  is  found  much  more  frequently  among 
criminals  than  among  people  presumably  honest."1 
But  though  this  type  may  not  exist  he  believes  that 
in  every  criminal  there  exists  an  inherent  tendency 
towards  crime,  "that  there  exists  always  in  the 
instincts  of  the  true  criminal  a  peculiar  element, 
congenital  or  hereditary,  or  acquired  during  his 
childhood  and  become  inseparable  from  his  psychic 
organism.  The  fortuitous  criminal  does  not  exist 
if  by  this  word  it  is  meant  that  a  man  morally  well 
organized  can  commit  a  crime  by  the  sole  force  of 
exterior  circumstances."2  The  criminal  is,  there- 
fore, an  anomaly  among  human  beings.  He  dis- 
cusses atavism  and  degeneracy  as  causes  of  this 
anomaly  always  laying  the  largest  amount  of  stress 
on  the  psychological  characteristics  of  the  criminal 
and  reaches  the  conclusion  that  the  typical  criminal 
is  a  "monster  in  the  psychic  order,  having  regres- 
sive traits  which  take  him  back  to  inferior  animality ; 
the  incomplete,  inferior  criminals  have  a  psychic 

1  Op.  dt.  p.  78.  2  Op.  dt.  p.  102. 

50 


ANTHROPOLOGY   AND    SOCIOLOGY 

organization  with  traits  which  bring  them  close  to 
savages."1  Thus  as  emphatically  as  Lombroso, 
Garofalo  insists  upon  the  necessity  of  studying  the 
criminal.  "These  cases  of  exaggerated  anomaly 
are  revealed  by  the  very  circumstances  of  the  of- 
fense, while  in  the  cases  less  evident  the  nature  of 
the  criminal  cannot  be  determined  without  anthro- 
pological and  psychological  observation ;  so  that 
science  is  called  upon  to  render  much  greater  serv- 
ices to  classify  the  inferior  criminals."2 

Lombroso  and  Garofalo,  as  we  have  seen,  devote 
most  of  their  attention  to  the  study  of  the  criminal. 
The  third  of  the  founders  of  the  new  science  of 
criminology,  Enrico  Ferri,  is  much  more  synthetic 
in  his  treatment  of  criminological  problems. 
Speaking  of  the  new  science  he  says,  "our  school 
has  made  of  it  a  science  of  positive  observation 
which,  supporting  itself  upon  anthropology,  psy- 
chology, criminal  statistics,  as  upon  penal  law  and 
penological  studies,  becomes  this  synthetic  science 
which  I  myself  have  called  'criminal  sociology'."8 

It  may  be  contended  that  this  synthetic  science" 
is  criminology  of  which  criminal  sociology  is  but 
one  part.  This,  however,  is  a  question  of  terms  and 
under  this  title  Ferri  has  given  us  the  best  treat- 
ment which  has  yet  been  made  of  the  social  aspects 
of  crime.  But  he  starts  out  by  emphasizing  as 
strongly  as  Lombroso  and  Garofalo  the  importance 
of  criminal  anthropology  which  he  defines  as  the 
"natural  history  of  criminal  man."4  The  difference 

*0p.  cit,  p.  120.  2Op.  cit.  p.  121. 

8  E.   Ferri:   La   sociologie   criminelle,   Paris,    1905,    p.   40. 

'Op.  cit.  p.  48. 

51 


CRIMINAL    PROCEDURE 

and  the  relation  between  the  two  are  as  fol- 
lows: "For  the  criminal  sociologist,  these  data  (of 
criminal  anthropology),  which  are  for  the  anthro- 
pologist the  point  of  arrival,  are  only  the  point  of 
departure  from  which  to  arrive  at  conclusions 
juridico-social  which  are  outside  of  the  peculiar 
competency  of  the  anthropologist.  So  that  it  can 
be  said  that  criminal  anthropology  is  to  criminal 
sociology  what  the  biological  sciences,  whether 
descriptive  or  experimental,  are  to  the  clinic."1  He 
offers  no  original  contributions  to  criminal  anthro- 
pology in  this  work  (though  he  has  done  so  in  his 
work  on  homicide)  but  he  devotes  his  attention  at 
first  to  the  refutation  of  the  principal  criticisms 
which  have  been  made  of  its  methods  and  conclu- 
sions in  order  to  prove  that  it  provides  criminal 
sociology  with  a  substantial  basis. 

The  first  criticism  made  of  the  method  used  in 
the  study  of  criminals  was  the  small  number  of  in- 
dividuals examined.  This  criticism  has  already 
been  renounced.  In  1893  Lombroso  was  able  to 
collect  the  records  of  the  examination  of  fifty-four 
thousand  criminals,  insane  and  normal  individuals 
and  the  number  has  greatly  increased  since  then. 
Furthermore  most  of  the  biological  data  of  great 
importance  are  subject  to  the  least  variations,  "for 
example,  if  the  length  of  arms  can  vary  from  one 
man  to  another  by  several  centimeters,  on  the  other 
hand  the  width  of  the  forehead  can  vary  only  by  a 
small  number  of  millimeters.  From  whence  this 
evident  consequence  that,  in  anthropological  re- 

*Op.  cit.  p.  52. 

52 


ANTHROPOLOGY   AND    SOCIOLOGY 

searches,  the  necessity  of  large  numbers  is  in  direct 
ratio  with  the  variability  of  the  characteristics 
studied,  or  in  inverse  ratio  with  their  biological 
importance."1 

A  second  criticism  made  of  the  method  used  in 
the  study  of  criminals  has  been  of  the  comparison 
between  criminals  and  normal  persons  either  be- 
cause of  the  difference  of  number  in  the  two  series 
of  individuals  examined  or  because  of  the  differ- 
ence in  their  personal  conditions.  He  disproves 
this  criticism  by  showing  the  approximate  equality 
in  the  number  of  criminals  and  the  number  of 
normal  individuals  examined  and  by  showing  that 
comparison  has  usually  been  made  between  crim- 
inals and  non-criminals  of  the  same  class. 

Objection  has  been  made  to  the  scientific  pre- 
suppositions of  criminal  anthropology  by  means  of 
which  it  takes  for  basis  the  general  inductions  of 
the  natural  and  biological  sciences.  But  to  make 
this  objection  is  to  deny  the  law  of  evolution  which 
proclaims  the  continuity  of  social  and  moral  phe- 
nomena with  biological  and  other  natural  phenom- 
ena and  necessitates  the  search  for  the  origin  of 
social  and  moral  phenomena  in  these  other  sciences. 
To  the  different  points  of  this  objection,  namely, 
that  there  is  no  relation  between  the  physical  ancj 
moral  constitution  of  man,  that  there  is  no  genetic 
relation  between  organs  and  functions,  and  that 
there  is  no  relation  between  the  brain,  the  mind  and 
morality,  Ferri  makes  specific  replies. 

It  has  been  contended  that  disagreements  both 

1  Op.  cit.  pp.  59-60. 

53 


CRIMINAL    PROCEDURE 

quantitative  and  qualitative  exist  in  the  data  of 
criminal  anthropology.  In  the  first  place  such  dis- 
agreements are  bound  to  exist  in  any  science  in 
which  the  complexity  of  the  phenomena  studied  is 
increasing  rapidly.  "Why,  therefore,  should  this 
disagreement  in  partial  results  be  a  sentence  of 
death  for  criminal  anthropology  alone,  which  is  in 
this  respect  neither  more  nor  less  culpable  than 
every  other  biological  science,  and  which  is  only  in 
its  beginnings?"1  He  shows  that  many  of  these 
disagreements  have  resulted  from  faults  in  the 
methods  of  some  anthropologists  and  that  they  are 
rapidly  disappearing.  The  objection  that  there  is 
a  qualitative  disagreement  between  organic  evolu- 
tion and  psychic  evolution  is,  in  the  first  place,  as 
has  been  shown  above,  a  denial  of  the  general  law 
of  evolution  and  furthermore  has  arisen  out  of  a 
partial  study  of  the  data  of  criminal  anthropology. 
It  is  objected  that  "the  anomalies,  above  all  of  an 
organic  nature,  are  encountered  not  only  in  crim- 
inals, but  on  the  one  hand  in  honest  persons  them- 
selves, on  the  other  hand  in  the  insane  who  are  not 
criminal,  and  in  general  in  the  degenerates."2  It 
is  true  that  frequently  there  is  found  in  an  honest 
individual  one  or  a  very  few  of  the  characteristics 
which  are  found  in  a  greater  number  in  criminals. 
But  anthropologists  are  in  accord  that  the  signifi- 
cance of  these  anomalies  "resides  in  the  accumula- 
tion more  or  less  great  of  these  anomalies  in  the 
same  individual."3  These  anomalies  in  an  honest 
person  are  often  corrected  by  other  anthropological 

1  Op.  dt.  p.  69.         -Op.  dt.  p.  75.  30i>.  clt.  p.  77. 

54 


ANTHROPOLOGY   AND    SOCIOLOGY 

characteristics.  Furthermore  it  sometimes  happens, 
in  accordance  with  the  law  of  heredity,  that  the  pre- 
dominance of  the  two  parents  in  the  transmission 
of  their  characteristics,  organic  or  psychic,  is  vari- 
able, that  one  of  the  two  parents  "should  have  trans- 
mitted the  exterior  abnormal  forms,  the  other,  on 
the  contrary,  the  normal  nervous  and  consequently 
psychic  constitution."1  It  must  also  be  remembered 
that  some  abnormal  individuals  are  kept  from  crime 
by  external  circumstances,  of  others  it  is  not  cer- 
tain that  they  will  remain  honest  all  their  lives, 
while  still  others  have  committed  crimes  but  have 
not  been  caught  or  their  prison  record  is  not  known 
in  society.  "As  to  the  second  part  of  the  objection, 
which  is  concerned  with  this  fact  that  the  anomalies 
of  criminals  are  found  also  in  the  insane  who  are 
not  delinquent  and  in  degenerates  in  general,  it  is 
attached,  as  we  shall  soon  see,  to  the  opinion  ac- 
cording to  which  congenital  deliquency  is  only  a 
branch  of  the  trunk  from  which  proceeds  insanity, 
or  is  no  other  than  one  of  the  numerous  forms  of 
general  degeneracy."2 

The  historical  and  anthropological  indetermina- 
tion  of  crime  is  another  objection  made  against 
criminal  anthropology.  This  objection  is  based  on 
the  historical  fact  that  many  acts  once  considered 
crimes  are  not  considered  so  now -and  vice  versa,  and 
the  question  has  been  raised  whether  the  anthro- 
pological characteristics  of  criminals  have  varied 
from  age  to  age  and  from  place  to  place.  This  ob- 
jection has  growrn  out  of  the  incomplete  and  uni- 

1  Op.  dt.  p.  77.  z  Op.  dt.  p.  80. 

55 


CRIMINAL    PROCEDURE 

lateral  conception  of  the  new  science  of  criminology 
which  gives  rise  to  the  belief  that  the  founders  and 
adherents  of  this  new  science  regard  crime  as  the 
product  of  anthropological  factors  alone.  And 
here  Ferri  introduces  his  classification  of  the  causes 
of  crime  as  the  result  of  physical  or  telluric  condi- 
tions, biological  or  anthropological  factors  and 
social  conditions.  These  different  series  of  factors 
vary  greatly  as  the  causes  of  the  different  kinds  of 
crimes.  It  is  a  noticeable  fact  that  the  social  fac- 
tors have  been  most  prominent  in  the  classes  of 
crimes  which  have  not  been  permanent.  "The  his- 
torical indetermination  of  crime  should  not  there- 
fore be  affirmed  in  a  general  and  absolute  manner 
-for  all  crimes;  it  applies  above  all  to  those  forms  of 
crime  (evolutive  criminality)  which  are  the  peculiar 
product,  more  or  less  transitory,  of  peculiar  social 
conditions."1  On  the  other  hand  "the  character- 
istics solely  organic  disclosed  in  criminals  by  crim- 
inal anthropology  are  much  more  striking  and  more 
frequent  in  these  fundamental  forms  of  criminality 
which  are  less  subject  to  variations  of  the  social 
surroundings."2  Against  the  crimes  committed 
by  these  criminals  there  has  almost  always  been  in 
the  historical  evolution  of  humanity  some  form  of 
social  reaction.  The  manner  in  which  these  crimes 
have  been  committed  has  varied  but  the  organic 
and  psychic  anomalies  which  caused  them  have  re- 
mained more  or  less  the  same,  a  fact  which  Ferri 
formulates  in  the  following  principle:  "The  social 

1  Op.  dt.  p.  83.  2  Op.  dt.  p.  82. 

56 


ANTHROPOLOGY   AND    SOCIOLOGY 

environment  (milieu)  gives  the  form  to  the  crime 
which  has  its  basis  in  the  biological  factor." 

In  connection  with  these  objections  it  is  some- 
times contended  that  the  researches  of  criminal 
anthropology  are  not  justifiable  until  "there  has 
been  determined,  outside  of  the  penal  laws,  which 
are  variable,  the  boundaries  between  crimes  and 
normal  conduct,  according  to  natural  and  social  cri- 
terions."1  This  contention  Garofalo  has  answered, 
as  we  have  already  seen,  by  his  conception  of  the 
"natural  offense"  as  opposed  to  the  "legal  offense" 
created  by  the  law.  But  Ferri  does  not  consider  it 
necessary  to  start  out  with  any  preliminary  defini- 
tion. "In  my  opinion  the  definition,  with  which  the 
metaphysicians  and  classical  jurists  always  like  to 
commence,  can  be,  on  the  contrary,  only  the  ultimate 
synthesis ;  it  ought  therefore  to  come  at  the  end 
and  not  at  the  beginning  of  the  researches  of  crim- 
inal sociology."2  This  certainly  is  more  in  accord 
with  the  positive  scientific  method  and  the  scientists 
of  the  new  school  in  their  direct  study  of  the  crim- 
inal seem  to  be  getting  nearer  to  a  permanent  and 
stable  dennition  of  crime  than  have  the  jurists  in 
their  study  of  acts,  the  criminal  character  of  which 
is  constantly  changing. 

The  substance  of  Ferri's  answer  to  the  objection 
that  no  criminal  type  exists  will  be  given  later  on 
in  a  discussion  of  the  criminal  type. 

The  last  objection  he  .discusses  is  to  the  effect 
that  there  are  divergencies  in  the  scientific  deter- 
mination of  the  origin  and  of  the  nature  of  crimin- 

1  op.  dt.  p.  85.  2  op.  dt.  pp.  85-86. 

57 


CRIMINAL    PROCEDURE 

ality.  It  is  true  that  numerous  explanations  and 
hypotheses  have  been  made  by  criminologists. 
Among  others  are  the  following:  that  crime  is  a 
phenomenon  of  biological  normality ;  of  social  nor- 
mality; of  biological  abnormality  by  atavism,  by 
neurasthenia,  by  epilepsy,  by  moral  anomaly,  etc.; 
of  social  abnormality  by  economic  influences,  by 
complex  social  influences,  by  juridical  inadaptation. 
Each  of  these  hypotheses  Fer'ri  subjects  to  a  careful 
examination  in  order  to  get  from  each  what  it  has 
to  contribute  towards  a  synthetic  conclusion  which 
he  believes  will  give  a  complete  expression  for  the 
phenomenon  of  crime.  He  resumes  his  examina- 
tion of  these  hypotheses  as  follows:  "each  of  these 
biological  explanations  of  criminality  is  true  in 
part;  and  I  say  in  part  because  each  of  them  is 
verified  in  reality  more  or  less  completely  in  this  or 
that  variety  of  each  category.  But  no  one  of  these 
hypotheses  is  sufficient  or  complete;  first  because 
no  one  of  them  suffices  to  explain  the  natural  gen- 
esis of  crime  in  all  the  categories  of  delinquents; 
in  the  second  place  because,  even  when  it  is  in  ac- 
cord with  the  characteristics  of  this  or  that  criminal 
type,  it  still  does  not  give  the  precise  and  funda- 
mental reason  why,  in  certain  individuals,  such  or 
such  a  condition  of  biological  abnormality  results 
in  crime,  while  in  others  it  results  in  insanity  or 
suicide,  or  only  an  organic  and  psychic  inferiority."1 
He  then  gives  his  own  theory  of  the  origin  of  crime 
in  saying  that  every  crime  "is  always  the  resultant, 
in  every  anthropological  category  of  delinquents 

1  Op.  cit.  p.  122. 

58 


ANTHROPOLOGY   AND    SOCIOLOGY 

and  in  every  individual  of  each  category,  as  much  of 
special  abnormality,  permanent  or  transitory,  con- 
genital or  acquired,  of  the  organic  or  psychic  con- 
stitution, as  of  exterior  circumstances,  physical  and 
social,  which  contribute,  at  a  given  time  and  place, 
to  determine  the  action  of  a  given  man."1  This 
theory  brings  him  to  the  conception  of  crime  as  a 
phenomenon  of  biologico-social  abnormality,  "a 
phenomenon  of  complex  origin,  as  much  biological 
as  physico-social,  with  modalities  and  degrees  dif- 
ferent according  to  the  different  circumstances  of 
persons  and  things,  of  time  and  of  place."2 

The  objections  against  criminal  anthropology  to 
which  he  has  been  replying  he  sums  up  as  follows : 
"Unilaterality,  this  is  the  organic  defect  of  all  the 
objections  made  to  the  data  of  criminal  anthropol- 
ogy ;  the  critics  have  always  wanted  to  suppose,  for 
polemical  convenience,  that  the  new  science  con- 
siders crime  as  a  phenomenon  solely  and  exclusively 
biological,  while,  from  the  beginning,  its  founders, 
although  separating  provisionally,  for  imperious 
reasons  of  study,  this  or  that  phase  of  the  phenome- 
non of  crime,  yet  have  always  affirmed  its  complex 
natural  determination,  in  the  biological  order  as  in 
the  physical  order  and  in  the  social  order."3  The 
complexity  of  the  causes  of  crime  and  in  the  kinds 
of  crime  which  Ferri  has  signalized  indicates  a 
complexity  in  the  kinds  of  criminals  and  he  now 
proceeds  to  the  classification  of  criminals.  First 
comes  the  distinction  between  the  two  great  cate- 
gories of  habitual  criminals  and  of  occasional 

1  Op.  cit.  p.   126.        'Op.  cit.  p.  134.        90p.  cit.  p.  136. 
50 


CRIMINAL    PROCEDURE 

criminals.  This  distinction  he  demonstrates  by  two 
orders  of  proof;  first,  the  synthetic  results  of  an- 
thropological researches  upon  delinquents,  second, 
statistical  data  on  recidivation  and  the  forms  of  de- 
linquency. The  anthropological  researches  show  that 
from  fifty  to  sixty  per  cent,  of  the  criminals  have 
only  a  few  organic  and  psychic  anomalies,  that 
about  a  third  have  a  very  large  number  and  that  a 
tenth  have  none  at  all.  A  study  of  criminal  sta- 
tistics in  different  parts  of  Europe  brings  him  to 
the  conclusion  that  the  recidivation  in  Europe  usu- 
ally ranges  from  fifty  to  sixty  per  cent.  A  further 
study  of  these  figures  according  to  the  different 
kinds  of  crime  committed,  distinguishing  the  crimes 
characteristic  of  criminals  with  abnormal  anthro- 
pological traits  from  those  usually  committed  by 
occasional  criminals,  brings  him  to  the  conclusion 
that  the  former  class  of  criminals  exists  in  a  pro- 
portion of  from  forty  to  fifty  per  cent,  of  the  total, 
a  figure  which  closely  corresponds  to  the  one  given 
by  Lombroso.  "Therefore  the  statistics  of  general 
recidivation  and  of  the  different  kinds  of  offenses 
confirm  anew,  in  an  indirect  manner,  the  observa- 
tion that  in  the  total  number  of  those  who  commit 
offenses  a  part  only  present  these  individual  anoma- 
lies that  anthropology  has  distinguished."1 

Having  demonstrated  this  fundamental  distinc- 
tion between  habitual  criminals  and  criminals  of 
occasion  he  gives  his  classification  of  criminals  in 
the  following  five  categories:  insane  criminals — 

1  Op.  cit.  p.  146. 

60 


ANTHROPOLOGY   AND   SOCIOLOGY 

born  criminals — habitual  criminals — occasional  crim- 
inals— criminals  by  passion. 

Of  the  different  kind  of  insane  criminals  he  men- 
tions first  the  moral  imbeciles  whom,  as  we  have 
seen,  Lombroso  very  nearly  identifies  with  the  born 
criminal.  Moral  imbecility  is,  however,  not  the 
ordinary  form  of  insanity.  "Outside  of  the  moral 
imbecile. .  .there  is  a  whole  phalanx  of  wretched 
beings  who  are  affected  with  a  common  form,  more 
or  less  apparent,  of  mental  infirmity,  and  who,  in 
this  pathological  state  commit  offenses  often 
atrocious,  in  the  cases,  for  example,  of  idiocy,  of  the 
mania  of  persecution,  of  the  mania  of  fury,  of  epi- 
lepsy, or  of  outrages  against  property  and  decency, 
for  example  in  cases  of  general  paralysis,  of  epil- 
epsy, of  imbecility,  etc."1  The  forms  of  insanity 
which  cause  delinquency  are  so  complex  that  it  is 
impossible  to  unite  them  in  a  single  formula. 
There  are  the  delinquents  belonging  to  the  cate- 
gory which  Maudsley  has  called  "the  intermediary 
zone"  and  which  Lombroso  has  called  "mattoid" 
who  are  neither  completely  insane  nor  entirely 
sane. 

Next  come  the  born  criminals  who  belong  to  the 
anthropological  type  whose  characteristics  Lom- 
broso has  described  in  such  great  detail.  "These 
are  of  the  types  of  men  either  savage  and  brutal 
or  crafty  and  lazy  who  cannot  distinguish  homi- 
cide, theft,  crime  in  general,  from  honest  industry, 
who  are  'delinquents  as  others  are  good  workmen/ 
who  have  about  crime  and  punishment  ideas  and 

1  Op.  dt.  p.  134, 

61 


CRIMINAL    PROCEDURE 

feelings  entirely  opposed  to  those  that  legislators 
and  jurists  suppose  they  have."2  These  are  the 
criminals  who  consider  the  prison  as  an  asylum 
where  food  and  lodging  is  assured  to  them  or  at 
the  most  as  the  risk  of  their  criminal  industry,  just 
as  accidents  of  all  sorts  are  the  risks  of  honest 
trades.  These  are  the  ones  who  soon  after  leaving 
prison  recidivate  and  thus  return  again  and  again 
to  prison  with  a  frequency  which  depends  upon  the 
character  of  their  crimes  "and  against  whom  the 
legislator  closing  the  eyes  to  everyday  experience, 
persists  in  this  useless  and  costly  struggle  between 
punishments  which  do  not  cause  any  fear  and 
crimes  repeated  without  cessation." 

The  third  category  of  criminals  is  that  of  the 
habitual  criminals.  These  individuals  do  not  have 
or  have  only  to  a  slight  degree  the  anthropological 
characteristics  of  the  born  criminal.  Their  first 
crimes  are  caused  less  by  congenital  tendencies 
than  by  moral  weakness  and  by  the  force  of  circum- 
stances and  of  corrupt  surroundings.  But  when 
once  a  crime  has  been  committed,  usually  at  an 
early  age  and  almost  always  against  property,  they 
persist,  especially  when  encouraged  by  the  impun- 
ity which  often  follows  their  first  offenses,  in  a 
criminal  career  which  becomes  for  them  a  chronic 
habit  and  a  veritable  profession.  "This  results 
from  the  fact  that  detention  in  common  has  cor- 
rupted them  morally  and  physically,  or  cellular 
imprisonment  has  stupefied  them,  alcoholism  has 
brutalized  them,  and  society  abandoning  them  after 

2O/>.  dt.  p.  156. 

62 


ANTHROPOLOGY   AND   SOCIOLOGY 

as  before  their  liberation  to  misery,  to  idleness,  to 
temptations,  has  not  aided  them  to  struggle  to  re- 
enter  the  conditions  of  honest  life."1  Precocity 
and  recidivation  are  the  two  principal  sociological 
characteristics  of  the  habitual  criminal.  They  are 
characteristics  of  the  born  criminal  also  but  through 
different  causes. 

The  criminal  by  passion  or  by  transport  of  pas- 
sion is  an  occasional  criminal  but  with  distinct  con- 
stitutional traits  which  distinguish  him  from  other 
occasional  criminals.  "These  are  individuals  whose 
previous  life  has  been  without  a  stain,  men  of  a  san- 
guine or  nervous  temperament  and  of  an  exagger- 
ated sensibility,  as  opposed  to  born  and  habitual 
criminals ;  they  even  have  sometimes  a  temperament 
which  partakes  of  that  of  an  insane  person  or  an 
epileptic  and  of  which  the  criminal  passion  may  be 
only  a  disguised  manifestation.  Most  frequently 
(and  these  are  frequently  women)  they  commit  the 
crime  in  their  youth  under  the  impulse  of  a  passion 
which  breaks  out  suddenly,  as  anger,  baffled  love, 
offended  honor."2 

The  occasional  criminals  are  those  "who  have 
not  received  from  nature  an  active  tendency  towards 
crime  but  rather  those  who  fall  into  it  pushed  by 
the  incitement  of  temptations  that  their  personal 
circumstances  or  the  physical  and  social  conditions 
in  which  they  live  offer  them,  and  who  do  not  fall 
into  it  again  if  these  temptations  disappear."3  But 
even  in  most  of  the  occasional  criminals  there  is  a 
certain  abnormality  much  less  in  degree  than  in  the 

1Op.  cit.  p.  158.        *Op.  cit.  p.  166.          *0p.  cit.  p.  167. 

63 


CRIMINAL    PROCEDURE 

born  criminals  which  justifies  Lombroso  in  calling 
them  "criminaloids."  Of  the  two  conditions  which 
psychically  determine  crime — moral  insensibility 
and  lack  of  foresight — the  second  is  the  principal 
one  which  determines  the  crime  of  occasion,  while 
the  first  determines  principally  habitual  and  con- 
genital delinquency.  The  social  sense,  the  lack  of 
which  causes  moral  insensibility,  may  be  very 
strong  in  the  occasional  criminal  but  it  is  not  sec- 
onded by  a  sufficiently  keen  prevision  of  the  con- 
sequences of  crime  and  therefore  yields  to  the 
exterior  impulse  without  which  it  could  have  kept 
the  individual  in  the  path  of  honesty.  There  are, 
however,  those  whom  Lombroso  has  called  "pseudo- 
criminals"  who  are  entirely  normal  and  yet  have 
committed  crime  involuntarily  or  have  done  acts 
causing  no  social  damage  and  displaying  no  pervers- 
ity but  which  nevertheless  are  considered  criminal 
by  the  law. 

This  is  Ferri's  five-fold  classification  of  criminals. 
He  then  takes  up  other  classifications  that  have  been 
suggested  and  discusses  them.  But  he  is  careful 
to  insist  that  neither  in  his  classification  nor  in  any 
other  can  the  lines  between  the  different  classes  be 
drawn  with  absolute  exactitude.  "The  differences 
between  these  five  classes  of  criminals  are  only  dif- 
ferences of  degree  and  modality,  as  much  for  the 
organic  or  psychic  characteristics  as  for  the  co- 
operating factors  of  the  physical  and  social  sur- 
roundings. Just  as  there  is  no  essential  difference 
between  the  different  groups  of  any  natural  classi- 
fication, as  in  mineralogy,  in  botany,  in  zoology  or 
64 


ANTHROPOLOGY   AND    SOCIOLOGY 

in  general  anthropology,  so  there  is  none  between 
these  groups  of  criminal  anthropology."1  Such  a 
classification  has  a  practical  utility  not  only  in  peni- 
tentiary administration  but  "this  distinction  should 
be  for  juridical  science  one  of  the  principal  norms 
upon  which  should  be  regulated,  for  considerations 
of  quality  and  of  degree,  the  social  defense  against 
crime;  that  is  to  say,  it  should  be  the  fundamental 
datum  of  criminal  sociology."2 

Having  firmly  established  its  basis  in  criminal 
anthropology  Ferri  now  turns  to  the  method  and 
subject  matter  of  criminal  sociology  itself.  Its 
method  must  be  somewhat  different  from  that  of 
criminal  anthropology.  "For  social  phenomena, 
as  distinguished  from  physical  and  biological  phe- 
nomena, if  experimenting  is  very  difficult  and  often 
impossible,  observation  is  the  means  which  is  the  best 
suited  to  scientific  researches ;  and  statistics  furnish 
one  of  the  most  useful  instruments  for  this  obser- 
vation."3 By  means  of  statistics  is  shown  the 
intimate  connection  between  crime  and  social  con- 
ditions. They  reveal  in  the  individual  elements 
of  the  social  organism  the  fundamental  causes  of 
crime  as  a  social  phenomenon.  They  are  of  utility 
not  only  in  scientific  researches  and  inductions  but 
also  in  practical  legislative  applications.  As  Lord 
Brougham  said  at  the  statistical  congress  at  London 
in  1860,  "criminal  statistics  are  for  the  legislator 
what  the  map,  the  compass,  and  the  sounding  line 
are  for  the  navigator."  Not  until  these  social  causes 
of  crime  have  been  determined  and  gauged  can 

1  Op.  cit.  p.   171.         *0p.  cit.  p.  180.        80p.  cit.  p.  184. 
5  65 


CRIMINAL    PROCEDURE 

measures  be  intelligently  taken  to  counteract  them. 

Ferri  next  takes  up  his  classification  of  the 
causes  of  crime  in  the  three  categories  of  the  an- 
thropological, physical  and  social  causes  of  crime. 
In  the  anthropological  factors  are  included  the 
organic  and  psychic  constitution  of  the  criminal, 
whose  anomalies  have  been  exposed  by  criminal 
anthropology,  and  the  personal  characteristics  of 
the  criminal  including  the  biological  conditions  of 
race,  age  and  sex,  and  the  biologico-social  condi- 
tions of  the  civil  state,  profession,  domicile,  educa- 
tion, etc.  The  physical  or  cosmo-telluric  factors 
are  the  climate,  the  nature  of  the  soil,  the  succes- 
sion of  days  and  nights,  the  seasons,  the  annual 
temperature,  atmospheric  conditions,  etc.  All  of 
these  have  considerable  influence  on  the  manifes- 
tation of  crime.  The  social  factors  come  from  the 
social  environment  of  the  criminal  and  include  the 
density  of  the  population,  the  state  of  public  opin- 
ion and  of  religion,  the  constitution  of  the  family 
and  the  system  of  education,  the  industrial  produc- 
tion, alcoholism,  the  economic  and  political  organ- 
ization, the  administration  of  justice  and  of  the 
judicial  police,  etc.  These  conditions,  combined 
and  interwoven  in  the  most  complex  fashion  form 
the  indirect  and  latent  causes  of  crime. 

Ferri  then  makes  a  study  of  the  data  upon  the 
periodic  movement  of  criminality  in  Europe  which 
it  is  impossible  to  summarize  here.  This  study 
leads  to  the  formulation  of  the  law  of  criminal 
saturation  analogous  to  the  law  of  chemical  satura- 
tion. "As  in  a  given  volume  of  water,  at  a  given 
66 


ANTHROPOLOGY  AND    SOCIOLOGY 

temperature,  a  determinate  quantity  of  a  chemical 
substance  is  dissolved,  not  one  atom  more  and  not 
one  less,  so  in  a  given  social  sphere  with  given  in- 
dividual and  physical  conditions,  there  is  com- 
mitted a  determinate  number  of  crimes,  not  one 
more,  not  one  less."1  But  this  does  not  mean  that, 
as  is  sometimes  thought,  the  amount  of  crime  from 
year  to  year  is  equal,  that  according  to  a  fatal 
law  each  year  must  furnish  its  quota  of  crime. 
Since  the  physical  and  social  conditions  and  the 
biological  characteristics  of  the  population  vary 
from  year  to  year  the  criminality  must  vary  also 
and  the  extent  to  which  the  criminality  of  one  year 
approximates  the  criminality  of  the  next  is  deter- 
mined by  the  extent  to  which  the  causes  have  re- 
mained constant.  The  amount  of  criminality  is 
therefore  governed  by  a  dynamic  regularity,  but 
not  a  static  regularity,  since  criminal  phenomena 
depend  upon  natural  causes  and  not  upon  fatalism 
or  predestination.  It  is  therefore  possible  to 
modify  the  effects  to  the  extent  that  the  causes  can 
be  modified. 

He  then  proceeds  to  apply  this  law  of  criminal 
saturation  to  the  penalties  now  inflicted,  usually  in 
the  form  of  imprisonment,  in  order  to  determine 
to  what  extent  these  penalties  reduce  criminality 
by  modifying  its  causes.  After  an  extended  study 
of  the  historical,  statistical  and  psychological  data 
with  regard  to  this  question  he  comes  to  the  con- 
clusion that  "penalties,  far  from  being  this  con- 
venient panacea  that  they  are  generally  considered 

1  Op.  cit.  p.  230. 

67 


CRIMINAL    PROCEDURE 

by  jurists,  the  classical  legislators  and  by  the  public, 
have  only  a  very  limited  power  to  combat  crime."1 
In  view  of  the  failure  of  punishment  to  prevent 
crime  he  turns  his  attention  to  what  he  calls  the 
"equivalents"  of  punishment  or  changes  in  the 
conditions  which  cause  crime.  These  changes  will 
be  principally  in  the  social  factors  of  crime, 
though  they  will  have  their  effect  indirectly  on  the 
biological  factors  also.  The  fundamental  idea  of 
these  equivalents  of  punishment  is  "to  give  to  the 
social  organism  such  surroundings  that  human 
activity,  instead  of  being  vainly  menaced  with  re- 
pression, should  be  guided  continually  in  an  in- 
direct manner  into  paths  wyhich  are  not  criminal 
and  that  a  free  scope  should  be  offered  to  the 
energies  and  needs  of  the  individual,  whose  natural 
tendencies  will  be  opposed  the  least  possible,  who 
will  be  spared  as  much  as  possible  the  temptations 
to  and  opportunities  for  crime."2  Of  these  equiva- 
lents of  punishment  he  mentions  a  large  number 
in  the  following  categories ;  economic,  political, 
scientific,  administrative,  religious,  educational;  he 
mentions  likewise  those  found  in  the  family,  and 
in  connection  with  alcoholism,  vagabondage  and 
abandoned  children. 

These  equivalents  of  punishment  come  entirely 
outside  of  the  penal  code.  They  are  preventive 
measures  used  in  the  interest  of  social  hygiene  and 
are  the  most  effective  weapons  for  the  social  defense 
against  crime.  But  as  the  conditions  which  cause 
crime  will  never  disappear  there  will  always  have 

1  Op.  dt.  p.  267.  2  Op.  cit.  p.  270. 

68 


ANTHROPOLOGY   AND    SOCIOLOGY 

to  be  a  direct  form  of  social  defense  against  crim- 
inality which  already  exists.  This  direct  form  of 
social  defense  as  embodied  in  the  penal  system 
should  be  a  "clinic  by  which  society  will  preserve 
itself  from  the  disease  of  crime  as  it  preserves  it- 
self from  every  other  physical  and  mental  disease."1 
When  the  disease  is  curable  the  attempt  will  be 
made  to  cure  it.  When,  however,  it  is  congenital 
and  atavistic  its  victim  will  be  eliminated  in  some 
way,  in  order  to  protect  society. 

In  this  way  Ferri,  taking  the  inductions  of  crim- 
inal anthropology  as  a  starting  point,  builds  up  the 
science  of  criminal  sociology  in  which  are  treated 
the  social  aspects  of  crime.  It  is  in  fact  only  one 
part  of  the  general  science  of  sociology.  "Just  as, 
in  the  organic  order,  upon  the  common  foundation 
of  general  biology  (science  of  individual  life)  physi- 
ology and  pathology  are  distinguished,  for  the 
special  study  of  normal  or  abnormal  vital  phenom- 
ena; so,  in  the  super-organic  order  (as  Spencer 
said  with  an  idea  perhaps  inexact),  upon  the  com- 
mon foundation  of  general  sociology  (science  of 
social  life)  we  distinguish,  for  the  special  study  of 
normal  or  abnormal  social  phenomena,  on  the  one 
hand  economic,  juridical,  political  sociology,  on  the 
other  hand  criminal  sociology."2 

We  have  now  reviewed  the  theories  of  the  three 
founders  of  the  new  science  of  criminology.  A 
number  of  other  theories,  which  purport  to  explain 
congenital  criminality  entirely  or  in  part,  should  be 
mentioned  briefly. 

1  Op.  dt.  p.  315.  3Op.  dt.  p.  622. 

69 


CRIMINAL    PROCEDURE 

One  of  the  broadest  and  most  general  of  these  is 
the  one  which  regards  the  criminal  as  a  degenerate. 
Degeneracy  is  a  very  general  biological  phenomenon. 
It  is  characterized  by  a  series  of  steps  by  means  of 
which  a  family,  a  race,  or  a  species  which  has  at- 
tained a  certain  stage  of  evolution  regresses  to  an 
extent  more  and  more  marked  until  in  the  last 
stages  it  reaches  individual  sterility  which  results 
in  the  extinction  of  the  species.  This  biological 
phenomenon  is  common  to  all  animal  species  and 
was  first  applied  to  man  by  Morel.  He  distin- 
guished a  special  class  of  insane  whom  he  called 
degenerate  because  he  found  in  them  a  hereditary 
tendency  towards  sterility.  This  idea  was  taken 
up  later  and  much  developed  by  many  scientists, 
among  them  Charcot,  Magnan,  Baer,  Sergi,  etc. 
Human  degeneracy  is  now  a  recognized  fact  but 
its  limits,  causes  and  characteristics  are  still  to  a 
certain  extent  in  dispute.  The  problem  is  made 
very  difficult  by  the  variety  of  individuals  included 
in  this  group  which  extends  from  idiots  to  persons 
of  high  intelligence  and  even  of  genius  who  are 
somewhat  unbalanced,  all  of  them  being  on  the 
road  to  extinction.  These  disputed  questions  can- 
not be  discussed  here.  But  as  the  data  of  criminal 
anthropology  were  accumulated,  a  striking  similar- 
ity was  observed  between  the  characteristics  of  con- 
genital criminals  and  those  of  degenerates.  This 
similarity  gave  rise  to  the  theory  that  the  born 
criminal  is  a  degenerate,  which  now  has  many  par- 
tizans.  As  we  have  already  seen,  Lombroso  him- 
self has  noted  the  similarities  between  degeneracy 
70 


ANTHROPOLOGY- AND   SOCIOLOGY 

and  congenital  criminality.  Here  is  involved  the 
disputed  question  as  to  whether  or  not  atavism  is  a 
degenerate  characteristic,  those  who  deny  this  not 
being  able  to  admit  the  identity  with  or  extreme 
likeness  to  degeneracy  of  the  criminal  type  in  which 
atavism  is  so  prominent. 

Another  theory  regards  the  criminal  as  a  neuras- 
thenic. This  theory  arises  out  of  two  consider- 
ations, first,  that  some  forms  of  neurasthenia  are 
mono-symptomatic  and,  second,  that  analogies  exist 
between  the  psychic  states  of  certain  cerebral 
neurasthenics  and  the  psychic  states  of  criminals. 
Neurasthenia  is  sometimes  limited  to  the  brain  and 
causes  characteristic  disorders  there.  The  cerebral 
neurasthenic  lacks  stable  will  power.  His  desires 
are  fleeting  though  frequently  violent.  His  acts 
are  as  mobile  and  variable  as  his  thoughts.  He 
dislikes  work  because  it  requires  perseverance 
and  frequently  breaks  away  from  the  restraints  of 
family  life.  All  these  characteristics  make  him 
more  or  less  unadapted  to  social  conditions.  Bene- 
dikt  was  the  first  to  contend  that  the  criminal  is  a 
neurasthenic.  The  psychological  anomaly  of  the 
criminal  is,  according  to  him,  "  a  moral  neurasthenia 
combined  to  a  physical  neurasthenia  which  is  con- 
genital or  acquired  in  early  infancy."1  Its  principal 
element  is  an  aversion  to  work  which  comes  from 
the  nervous  constitution.  "If  an  individual  from 
infancy  has  neither  the  force  to  resist  sudden -im- 
pulses nor  the  force  to  obey  noble  excitations,  and, 

1  Quoted  in  the  Theories  de  la  criminalite  of  Dallemagne, 
Paris,  1896,  p.  112. 

71 


CRIMINAL    PROCEDURE 

especially,  if  this  moral  combat  has  for  him  the 
consequence  of  a  painful  feeling,  then  he  represents 
a  moral  neurasthenic."1  Vagabondage  is  one  mani- 
festation of  this  neurasthenia  if  there  is  necessity 
of  gaining  a  livelihood.  The  neurasthenia  may  not 
result  in  crime  but  if  a  strong  taste  for  some  form 
of  enjoyment  exists,  the  desire  to  secure  the  means 
of  satisfying  this  enjoyment  may  be  too  strong  for 
the  neurasthenic  to  resist  and  he  will  become  a 
criminal. 

A  theory  developed  by  Colajanni,  an  Italian 
criminologist,  is  that  the  criminal  is  a  phenomenon 
of  psychic  atavism.  Colajanni  begins  by  criticizing 
and  refuting  the  conclusions  of  criminal  anthro- 
pology and  especially  the  theory  of  physical  atavism. 
This,  he  says,  it  would  not  be  possible  to  admit,  be- 
cause it  presupposes  an  ancestral  type  with  the 
characteristics  of  criminals;  but  as  most  of  these 
characteristics  are  incompatible  with  regular  gen- 
eration such  a  type  could  not  exist.  His  own  con- 
clusion is  that  the  criminal  is  an  individual  attainted 
with  psychic  atavism,  which  is  the  reversion  of  the 
member  of  a  given  race  to  the  psychic  character- 
istics of  preceding  stages  in  the  evolution  of  the 
race.  The  superiority  of  this  theory  to  that  of 
physical  atavism,  he  contends,  is  that  it  can  be  de- 
duced from  direct  comparisons  between  savages 
who  exist  to-day  and  civilized  criminals,  from  the 
analogy  between  criminals  and  children  who  re- 
produce the  moral  past  of  the  race,  and  from  the 
traits  which  are  common  to  criminals  and  the  lower 

1  Op.  cit.  pp.  112-113. 

72 


ANTHROPOLOGY   AND    SOCIOLOGY 

classes  who  are  somewhat  backward  in  their  state 
of  civilization.  His  criticisms  involve  a  denial  of 
the  connection  between  the  physical  and  moral 
character  of  man  and  many  replies  have  been  made 
to  them,  which  cannot,  however,  be  summarized 
here. 

We  will  now  pass  to  theories  which  explain  the 
character  of  certain  special  classes  of  criminals. 
Criminals  frequently  appear  in  court  who  give  the 
impression  of  children.  These  are  infantiles  who, 
according  to  Brouardel,  constitute  a  special  group 
of  degenerates.  They  are  not  congenital  degen- 
erates but  degenerates  of  development.  Up  to 
the  age  of  puberty  these  infantiles  are  very  pre- 
cocious. They  are  alert,  adroit  and  lively.  The 
gamin  of  a  great  city  is  a  good  example.  But 
at  puberty  anatomical  and  psychic  changes  take 
place.  Anatomically  the  organs  experience  an 
arrest  of  development,  they  remain  those  of  a 
young  girl  or  boy.  Psychically  they  become  stupid 
and  sluggish  in  their  intelligence.  In  the  men 
there  is  a  tendency  towards  effemination  of  forms, 
and  sterility. 

The  effeminates  constitute  another  class  that 
resembles  that  of  the  infantiles.  They  are,  as 
Laurent  has  said,  "beardless,  with  long  eyelashes, 
thin  hair,  hips  much  developed,  shrill  voice.  Their 
limbs  are  round  like  those  of  a  woman,  their  muscles 
do  not  project  in  a  pronounced  manner  under  the 
skin,  their  contours  take  on  a  remarkable  softness, 
their  movements  are  full  of  suppleness  and  grace. 
Like  the  infantiles  they  are  the  most  frequently 
73 


CRIMINAL    PROCEDURE 

descendants  of  alcoholic  and  also,  as  Faneau  de  la 
Cour  has  shown,  of  tuberculous  parentage."1 

The  seniles  are  the  opposites  of  the  infantiles. 
In  them  decrepitude  comes  before  its  time.  Their 
evolution  has  taken  place  normally  but  their  involu- 
tion begins  too  soon.  They  become  organically 
and  functionally  old  before  their  time.  Among 
criminals  seniles  are  a  less  pronounced  class  than 
the  infantiles  and  effeminates,  but  are  sometimes 
found.  All  three  of  these  classes  are  special  va- 
rieties of  degenerates,  most  of  their  characteristics 
being  degenerate. 

This  variety  of  theories  shows  the  complexity  of 
the  problem  of  criminality.  It  indicates  the  large 
number  of  forces  which  cause  the  criminal.  To 
the  study  of  these  causes  must  be  brought  the  aid 
of  many  sciences,  among  them  biology,  anthropol- 
ogy, the  medical  sciences,  psychiatry,  etc.  It  is 
evident  that  no  unilateral  theory  can  answer  this 
problem  but  that  a  very  broad  and  synthetic  theory 
alone  can  serve  this  purpose. 

The  most  contested  idea  in  criminal  anthropology 
and  the  one  that  has  received  the  largest  amount 
of  discussion  in  books,  congresses,  etc.,  has  been 
that  of  the  criminal  type.  It  may  be  worth  while 
to  review  briefly  this  discussion  at  this  point  in 
order  to  indicate  how  far  the  conception  of  the 
criminal  has  been  synthesized. 

Though  this  idea  of  a  criminal  type  had  been 
suggested  several  times  in  the  past,  it  was  fully 

1  Quoted  in  the  Theories  de  la  criminalitc,  of  Dallemagne, 
Paris,  1896,  p.  175. 

74 


ANTHROPOLOGY  AND   SOCIOLOGY 

developed  for  the  first  time  by  Lombroso  so  that  it 
will  again  be  necessary  to  start  our  review  with 
him.  In  the  first  part  of  this  chapter  we  have  sum- 
marized his  conception  of  the  born  criminal  who  is 
for  him  a  distinct  criminal  type.  A  quotation  from 
his  speech  at  the  Congress  of  Criminal  Anthropol- 
ogy at  Turin  in  1906  has  shown  that  his  early 
studies  led  him  to  regard  the  criminal  as  an  ata- 
vistic type,  as  reproducing  the  characteristics  of 
lower  races.  This  theory,  offered  in  his  early  works 
as  an  explanation  of  congenital  criminal  tendencies, 
was  severely  attacked  on  account  of  its  unilateral- 
ity.  These  criticisms  and  his  further  researches 
led  him,  as  we  have  seen,  to  modify  this  theory  and 
to  admit  degeneracy  as  a  cause  of  congenital  crim- 
inality. He  has  even  come  to  regard  atavism  as  a 
form  of  degeneracy  as  where  he  speaks  of  the 
criminal  type  as  "the  presence  of  five  or  six  char- 
acteristics of  degeneracy  and  especially:  outstand- 
ing ears  (oreilles  a  anse),  frontal  sinuses,  jaw  and 
zygomas  voluminous,  a  ferocious  look  or  strabism, 
thin  upper  lip."1  In  this  he  has  been  supported 
by  a  writer  on  degeneracy.  "It  is  to  be  seen  there- 
fore that  a  state  of  existence  may  be  at  the  same 
time  pathological,  and,  nevertheless,  the  simple  re- 
turn of  a  state  of  existence  originally  entirely 
healthy,  and  it  has  been  a  reprehensible  thought- 
lessness to  accuse  Lombroso  of  contradiction  in 
seeing  at  the  same  time  degeneracy  and  atavism  in 
the  criminal  instinct.  The  unhealthy  aspect  of 
degeneracy  consists  precisely  in  the  fact  that  the 

1  L'homme  criminel,  Vol.  II,  p.  254. 

75 


degenerate  organism  has  not  the  power  to  ascend  to 
the  level  of  evolution  already  attained  by  the  species, 
but  stops  on  the  way  at  some  point  situated  more 
or  less  low."1  This  view  of  atavism  as  a  form  of 
degeneracy  has  made  Lombroso's  doctrine  more 
catholic  so  that  it  is  much  easier  to  connect  the 
criminal  with  the  social  and  physical  conditions 
out  of  which  he  has  evolved.  In  order,  therefore, 
to  understand  his  present  theory  of  the  criminal 
type  it  is  necessary  to  refer  to  the  later  editions  of 
his  work. 

In  the  first  place  he  discusses  the  character  of  a 
type  in  general.  "In  my  opinion,  one  should  re- 
ceive the  type  with  the  same  reserve  that  one  uses 
in  estimating  the  value  of  averages  in  statistics. 
When  one  says  that  the  average  life  is  32  years  and 
that  the  most  fatal  month  is  December,  no  one 
understands  by  that  that  everybody  must  die  at  32 
years  and  in  the  month  of  December."2  The  type 
is,  therefore,  an  abstract  conception  including  the 
characteristics  which  are  most  common  in  a  certain 
group  of  individuals.  But  this  does  not  mean  that 
every  individual  in  the  group  must  have  all  these 
characteristics.  As  Isidore  G.  Saint-Hilaire  has 
said :  "The  type  is  a  sort  of  fixed  point  and  common 
center  about  which  the  differences  presented  are 
like  so  many  deviations  in  different  directions  and 
oscillations  varied  almost  indefinitely,  about  which 
nature  seems  to  play,  as  the  anatomists  used  to  say 

1  Max  Nordau :  Degenerescence,  Paris,  1894,  quoted  in  the 
introduction  to  L'homme  criminel,  Vol.  I. 
-  Op.  cit.  Vol.  I,  p.  IX. 

76 


ANTHROPOLOGY   AND    SOCIOLOGY 

formerly,  and  as  is  still  said  in  Germanic  lan- 
guages."1 Applying  this  general  conception  of  a 
type,  it  is  evident  that  every  criminal  representing 
this  type  need  not  have  all  its  characteristics.  In 
fact  it  is  doubtful  if  any  one  criminal  ever  did  have 
all  these  characteristics.  As  one  of  his  principal 
adversaries,  Topinard,  has  said:  "The  type  of  a 
series  of  skulls  or  of  individuals,  is  not,  therefore, 
a  palpable  reality,  but  the  product  of  study,  a  de- 
sire, a  hope,  an  abstract  and  general  image,  accord- 
ing to  the  expression  of  Goethe. . .  .The  type  of  a 
species,  of  a  race,  of  a  people,  of  a  series  of  skulls, 
in  other  words  of  any  group  whatsoever,  is  then 
the  general  effect  of  the  characteristics  the  best 
attested,  the  most  constant  in  the  requisite  degree, 
and  the  most  striking  in  relation  with  those  of  other 
groups."2  On  the  other  hand  it  is  possible  for  a 
person  not  representing  a  type  to  have  one  or  a 
few  of  the  characteristics  of  the  type  as,  for  ex- 
ample, Goethe,  who  had  a  retreating  forehead, 
though  by  no  means  representing  the  criminal  type. 
It  is  now  evident  that,  in  accordance  with  the  gen- 
eral conception  of  a  type,  it  is  not  necessary  to. 
prove  the  presence  in  each  representative  of  the 
criminal  type  of  all  the  characteristics  of  this  type. 
A  second  question  is  what  percentage  of  crim- 
inals represent  the  criminal  type.  As  we  have  al- 
ready seen,  Lombroso  has  placed  this  number  at 
about  forty  per  cent.  The  objection  has  been  made 
that  it  is  impossible  to  talk  about  a  criminal  type 

•Quoted  in  L'homme  criminel,  Vol.  I,  p.  237. 
2 Elements  d'anthropologie  generate,  Paris,  1885. 
77 


CRIMINAL    PROCEDURE 

when  sixty  per  cent,  of  the  criminals  do  not  repre- 
sent it,  to  which  he  replies  as  follows :  "But,  in  ad- 
dition to  the  fact  that  the  figure  of  forty  per  cent, 
is  not  to  be  disdained,  the. .  .insensible  passage 
from  one  character  to  another  manifests  itself  in 
all  organic  beings ;  it  manifests  itself  even  from  one 
species  to  another ;  with  more  reason  is  it  so  in  the 
anthropological  field  where  the  individual  variabil- 
ity, increasing  in  direct  proportion  to  improvement 
and  to  civilization  seems  to  efface  the  complete 
type.  It  is  difficult,  for  example,  among  one  hun- 
dred Italians  to  find  five  who  present  the  type  of  the 
race;  the  others  have  only  fractions  of  it  which 
manifest  themselves  only  when  they  are  compared 
with  foreigners;  and  yet,  there  is  no  one  who 
dreams  of  denying  the  Italian  type."1  As  we  have 
already  seen,  Lombroso  has  indicated  many  gra- 
dations among  criminals  according  to  their  an- 
thropological characteristics,  showing  that  in  the 
gradations  in  which  these  characteristics  tend  to  dis- 
appear external  forces  are  the  principal  causes  of 
crime.  Thus  we  see  that  his  conception  of  the 
criminal  type  as  it  now  stands  is  very  carefully 
limited. 

Ferri  has  replied  at  some  length  to  the  objections 
made  against  the  criminal  type.  In  his  observations 
while  studying  the  homicide  he  was  frequently 
able  to  distinguish  the  homicides  from  other  pris- 
oners by  means  of  their  anthropological  char- 
acteristics. On  one  occasion,  while  examining 
seven  hundred  soldiers,  he  distinguished  one  who 

1  Op.  cit.  Vol.  I,  p.  IX. 

78 


ANTHROPOLOGY   AND   SOCIOLOGY 

presented  the  clear  type  of  the  homicide,  "retreat- 
ing forehead,  enormous  jaw,  cold  stare,  cadaver- 
ous paleness,  thin  lips,"1  and  found  out  later  that 
this  soldier  had  been  condemned  for  a  murder  com- 
mitted during  his  childhood.  The  decisive  marks 
are  to  be  found  in  the  physiognomy.  "I  must, 
however,  note  in  this  connection  that  the  anthropo- 
logical criminal  type  does  indeed  result  from  a  mass 
of  organic  characteristics,  but  that  the  decisive  traits 
are  really  the  lines  and  the  expressions  of  the 
physiognomy.  The  anomalies  of  the  structure  and 
of  the  bony  frame  of  the  skull  and  of  the  body  are 
only  the  complement  of  this  central  nucleus  which 
the  physiognomy  forms,  and  furthermore  certain 
of  its  characteristics  are,  at  least,  according  to  my 
experience,  more  characteristic  than  the  others, 
and  these  are  the  eyes  and  the  jaw."2  By  means  of 
these  traits  can  be  distinguished  not  only  the  homi- 
cide but  the  different  kinds  of  thieves  and  other 
criminals.  The  reason  for  the  predominating  value 
of  the  physiognomy  in  the  diagnosis  of  the  criminal 
type  is  that  "by  the  anomalies  of  the  skull  or  of 
the  skeleton  alone  can  be  distinguished  only  the 
degenerate  or  the  abnormal  in  general  from  normal 
man,  but  not,  by  these  indices  alone,  the  criminal 
from  the  other  degenerates."8  He  then  proceeds 
to  a  description  of  the  criminal  type  as  a  predisposi- 
tion for  crime.  "The  individual  who,  from  his  birth, 
by  hereditary  transmission  (as  has  been  proved 
a  thousand  times  for  alternations  of  alcoholism, 

1  La  sociologie  crvminelle,  p.  96. 

2  Op.  cit.  p.  97.  »  Op.  cit.  p.  97. 

79 


CRIMINAL    PROCEDURE 

of  insanity,  of  moral  insanity,  of  criminality,  of 
sterility,  in  certain  families  affected  with  degen- 
eracy), bears  in  his  organic  and  psychic  consti- 
tution this  union  of  anomalies,  is  predisposed 
to  crime."1  But  this  predisposition  does  not  mean 
that  the  person  who  has  it  is  absolutely  certain  of 
committing  crime.  To  the  objection  of  fatalism 
made  against  the  criminal  type  Ferri  replied  at  the 
Fourth  Congress  of  Criminal  Anthropology  at 
Geneva  in  1896  in  the  following  words:  "By  the 
born  criminal  the  Italian  school  has  not  understood 
and  does  not  understand  an  anthropological  type, 
characterized  only  by  anatomical  stigmata,  which 
is  inevitably  forced  to  commit  crimes,  whatever 
may  be  the  conditions  in  which  it  lives  and  acts. 
In  the  same  manner  there  are  born  phthisics,  that 
is  to  say,  with  a  congenital  and  hereditary  predis- 
position to  phthisis  and  who  may  not  die  of  phthisis 
if  they  have  the  good  fortune  to  live  in  exceptionally 
favorable  economic,  hygienic,  etc.,  conditions,  who, 
however,  cannot  efface  in  the  individual  the  char- 
acteristic traits  of  its  anatomical  and  physiological 
constitution.  So  that  by  the  born  criminal  the 
Italian  school  has  always  understood  a  man  in 
whom  the  determining  criminal  influence  is  for  the 
most  part  owing  to  the  pathological,  atavistic  and 
teratological  conditions  of  his  physio-psychic  per- 
sonality, which  make  him  a  well  characterized 
anthropological  variety."2  It  is  the  fact  that  these 
external  influences  are  sometimes  the  preponder- 

1 0/>.  dt.  p.  1 06. 

8  Revue  scientifique,  Paris,  Novemoer  7,  1896. 
80 


ating  causes  of  crime  that  has  led  Ferri  to  dis- 
tinguish a  bio-social  type  from  the  purely  anthro- 
pological or  biological  type. 

Garofalo  lays  most  emphasis  on  the  mental 
characteristics  of  the  criminal.  Though  not  op- 
posing the  existence  of  an  anthropological  criminal 
type,  he  is  uncertain  as  to  its  existence.  "What  in 
reality  is  lacking  to  criminal  anthropology  is  the 
incontestable  proof  that  any  characteristic  whatso- 
ever of  the  skull  or  skeleton  is  found  much  more 
frequently  among  criminals  than  among  per- 
sons presumably  honest."1  But  like  Ferri,  he  lays 
great  emphasis  on  the  physiognomic  characteristics 
of  the  criminal,  going  so  far  as  to  distinguish  three 
physiognomic  types,  the  murderer,  the  violator,  and 
the  thief. 

The  conception  of  the  criminal  type  has  been 
much  attenuated  since  it  was  first  presented  by 
Lombroso.  From  the  conception  of  a  group  of 
criminals  consistently  presenting  certain  character- 
istics coming  from  a  single  origin,  it  has  become 
the  conception  of  a  group  of  criminals,  each  of 
whom  has  a  considerable  number  of  anomalous 
characteristics,  which,  however,  vary  greatly  from 
individual  to  individual  and  whose  causes  are  very 
complex.  Whether  or  not  this  later  conception 
really  represents  a  distinct  anthropological  type  or 
not  must  depend  on  the  definition  of  a  type.  As  to 
this  definition  there  is  still  more  or  less  difference 
of  opinion  and  probably  always  will  be.  But  that 
the  criminal  by  nature  suffers  from  a  considerable 

1Op.  cit.  p.  78. 

6  81 


CRIMINAL    PROCEDURE 

number  of  organic  anomalies  is  now  almost  univers- 
ally believed  and  there  is  also  pretty  general  agree- 
ment as  to  what  these  anomalies  are.     And  this  is 
the  fact  of  practical  importance,  for  a  knowledge 
of  the  existence,  the  character  and  the  causes  of 
these  anomalies  enables  us  to  treat  them  intelligently. 
We  can  now  summarize  briefly  the  evolution  of 
criminal  anthropology  and  sociology.     When  Lom- 
broso  and  his  co-workers  commenced  their  study 
of  the  criminal,  the  phenomena  which  lent  them- 
selves most  easily  to  observation  were  the  anatom- 
ical   stigmata    which    could    be    measured    in    the 
cadavers    of    criminals.     Furthermore,    these    stig- 
mata being  subject  to  exact  measurement  were  least 
disputable  and  therefore  furnished  a  basis  for  clas- 
sification and  led  to  a  theory  of  criminality.     This 
was  the  theory  of  the  criminal  as  an  atavistic  type. 
This    theory   aroused    interest   and    stimulated   re- 
search, which  showed  the  inadequacy  of  the  study 
of  the  anatomical   stigmata  alone  and  caused  the 
study  of  other  parts  of  the  criminal,  his  nervous 
system,  viscera,  mental  traits,  etc.,  which  revealed 
many  anomalies  as  the  biological  stigmata  of  crim- 
inals.    These  biological  stigmata  led  to  the  analogy 
and  even  to  the  assimilation  of  the  criminal  with 
the  epileptic  and  the  degenerate  and  in  part  with 
the    insane.     For    the    explanation    of    these    two 
orders  of  stigmata  it  was  necessary  to  extend  the 
research  to  the  study  of  the  sociological  stigmata 
of  crime  which  confirmed  the  belief  that  crime  and 
criminals    are    inevitable    products    of    social    life. 
Thus  the  anatomical  stigmata  implied  a  biological 
82 


ANTHROPOLOGY  AND   SOCIOLOGY 

formula,  while  the  anatomico-biological  stigmata 
required  a  sociological  synthesis.1  This  synthesis 
is  now  being  made  and  has  already  reached  a  stage 
of  great  practical  utility,  but  it  can  never  become 
complete  on  account  of  the  great  complexity  of  the 
factors  involved. 

The  relation  between  criminal  anthropology  and 
criminal  sociology  is  a  matter  of  importance.  As 
we  have  seen,  Ferri  makes  criminal  anthropology 
the  basis  and  its  inductions  the  starting  point  of 
criminal  sociology.  While  there  is  pretty  general 
agreement  as  to  the  anthropological  characteristics 
of  the  criminal,  there  is  more  or  less  disagreement 
as  to  what  weight  these  characteristics  have  in 
causing  crime.  Two  general  currents  of  opinion 
exist  with  regard  to  this  question.  The  one  gives 
great  practical  weight  to  these  characteristics  and 
regards  the  individual  causes  as  preponderating  in 
the  genesis  of  crime.  This  opinion  is  represented 
by  Lombroso,  Ferri,  Garofalo  and  many  other  dis- 
tinguished criminologists.  The  other  opinion, 
though  not  necessarily  denying  the  individual  char- 
acteristics and  their  significance,  gives  more  weight 
to  the  social  causes  and  regards  them  as  predom- 
inant in  the  genesis  of  crime.  This  opinion  is 
represented  by  a  group  of  French  criminologists 
who  have  their  headquarters  at  the  University  of 
Lyons.  The  leader  of  the  so-called  school  of  Lyons 
is  Professor  Lacassagne,  who,  as  an  expert  in  med- 
ical jurisprudence  and  as  the  founder  and  editor  of 

1 J.  Dallemagne :  Les  stigmates  anatomiques  de  la  crim- 
inalite,  Paris,  1896. 

83 


CRIMINAL    PROCEDURE 

the  Archives  d'anthropologie  criminelle  et  des 
sciences  penales,  has  done  much  to  stimulate  the 
development  and  growth  of  the  science  of  criminal 
anthropology.  But  from  the  very  first  he  has  in- 
sisted upon  the  importance  of  the  social  factors  and 
by  so  doing  has  assisted  greatly  in  removing  from 
the  doctrines  of  criminal  anthropology  their  original 
unilateral  character.  Lacassagne  has  summed  up 
his  position  in  a  phrase  which  has  been  many  times 
repeated.  "The  social  environment  is  the  bouillon 
of  culture  of  criminality;  the  microbe  is  the  crim- 
inal, an  element  which  has  importance  only  when 
it  finds  the  bouillon  which  makes  it  ferment."1 
This  statement  is,  of  course,  in  a  sense  true  of 
the  other  point  of  view  also,  for  even  according 
to  Lombroso  and  his  followers  it  is  possible  for  a 
person  with  very  pronounced  criminal  character- 
istics to  live  an  honest  life  if  born  in  exception- 
ally favorable  circumstances.  But  their  belief  is 
that  the  tendency  of  such  a  person  is  to  become 
a  criminal  and  he  will  usually  become  so  however 
favorable  his  circumstances.  Lacassagne,  on  the 
contrary,  believes  that  distinctly  unfavorable  cir- 
cumstances are  almost  always  needed  to  develop 
the  inborn  criminal  tendency.  He  has  also  pub- 
lished studies  upon  the  connection  between  criminal 
tendencies  and  the  temperature,  showing  that  crimes 
against  property  predominate  in  winter,  while 
crimes  against  the  person  increase  with  the  tem- 
perature and  reach  their  maximum  in  summer. 

1J.   Dallemagne :   Les    theories    de   la  criminalite,  p.    157, 
Paris,  1896. 

84 


ANTHROPOLOGY   AND    SOCIOLOGY 

Other  members  of  this  school  have  shown  the  in- 
fluence upon  crime  of  the  professions,  education, 
etc.  The  International  Union  of  Penal  Law, 
founded  by  Prins,  Van  Hamel  and  Von  Lizt  also 
represents  this  opinion. 

While  there  is  a  sort  of  competition  between 
these  two  opinions  there  is  in  reality  no  contradic- 
tion between  them.  Both  are  searching  for  the 
natural  causes  of  criminality  and  neither  denies  the 
validity  and  value  of  the  data  of  the  other,  but 
each  tends  to  regard  as  more  important  its  own 
data.  And  this  competition  will  probably  in  the 
end  prove  to  be  very  beneficial  for  the  development 
of  these  two  sciences,  for  it  is  stimulating  the  accu- 
mulation of  a  great  deal  of  very  varied  data.  As 
the  synthetic  process  which  has  been  referred  to 
continues  and  the  synthesis  becomes  more  nearly 
complete,  these  two  opinions  will  become  reconciled 
and  the  data  accumulated  by  means  of  their  com- 
petition will  have  furnished  a  broad  and  therefore 
stable  foundation  for  the  inductions  of  the  science 
of  criminology.  This  belief  is  fully  justified  by  a 
consideration  of  the  fundamental  identity  of  the 
phenomena  studied  by  criminal  anthropology  and 
sociology.  While  it  is  true  that  at  any  given  mo- 
ment individual  factors  share  with  social  factors 
in  causing  crime,  still  these  individual  factors  them- 
selves are  in  large  part  the  cumulative  result  of 
social  environment  in  the  past.  The  exceptions  are 
the  atavistic  characteristics  which  date  back  to 
lower  species  or  to  a  period  anterior  to  human 
social  life,  while  if  these  are  a  form  of  degeneracy 
85 


CRIMINAL    PROCEDURE 

they  also  may  be  attributed  to  the  social  environ- 
ment. On  the  other  hand,  the  social  factors  are 
made  up  of  individual  factors  so  that  in  the  etiology 
of  crime,  as  in  that  of  any  human  phenomenon,  no 
fundamental  distinction  exists  between  these  two 
orders  of  factors. 

A  great  complexity  of  data  making  a  complete 
synthesis  impossible  is  characteristic  of  criminal 
sociology  just  as  it  is  characteristic  of  all  the  social 
sciences.  No  one  of  these  sciences  can  be  reduced 
to  laws  of  mathematical  exactness  but  this  does  not 
destroy  their  practical  utility.  The  science  of 
economics,  for  example,  has  not  reached  such  exact- 
ness, but  its  inductions  have  been  of  great  value  for 
legislation.  So  that  to  apply  criminal  sociology  to 
penal  legislation  is  by  no  means  impracticable.  But 
it  is  applicable  more  especially  to  those  indirect 
measures  for  the  prevention  of  crime  which  Fern 
has  called  the  equivalents  of  or  substitutes  for  pun- 
ishment. While  its  inductions  are  of  great  im- 
portance also  for  the  direct  means  of  preventing 
and  repressing  crime,  criminal  anthropology  plays 
here  what  is  perhaps  a  larger  part,  because  in  the 
direct  means  of  fighting  against  crime  the  individ- 
ual criminal  is  dealt  with  in  person.  Whether  his 
crime  may  have  been  caused  principally  by  social 
or  by  individual  factors,  when  it  is  necessary  to  de- 
cide what  treatment  is  to  be  given  him  his  individ- 
ual characteristics  must  be  given  great  weight,  even 
by  those  who  believe  that  the  social  factors  have 
been  the  principal  causes  of  his  crime. 

Applications  have  already  been  made  of  criminal 
86 


ANTHROPOLOGY  AND    SOCIOLOGY 

anthropology,  of  which  Lombroso  gives  several  ex- 
amples, from  which  I  will  quote  a  few : 

"Bersone  Pierre,  37  years  old,  well-known  thief, 
had  been  arrested  under  suspicion  of  a  theft  of 
20,000  francs  made  on  a  train.  In  prison  he  simu- 
lated insanity,  claiming  that  he  was  poisoned;  it 
was  soon  discovered  with  certainty  that  he  had 
committed  many  other  thefts,  having  been  found 
provided  with  a  quantity  of  pocket-books  and  pass- 
ports, among  others  the  one  belonging  to  a  certain 
Torelli.  At  the  anthropological  examination  were 
noted:  average  cranial  capacity,  1589  cubic  centi- 
meters ;  the  cephalic  index,  77 ;  a  complete  criminal 
physiognomic  type.  The  touch  was  nearly  normal, 
the  tongue  1.9,  2-3  in  the  right  hand,  2-1  in  the 
left,  with  sensorial  mancinism.  The  general  sensi- 
bility and  the  sensibility  to  pain  were  very  obtuse; 
48  and  10  millimeters  of  the  charriot  de  Rhum- 
korff,  while  they  are  about  61  and  24  millimeters 
in  a  normal  man. 

"The  study  with  the  hydrosphygmograph — an 
instrument  by  means  of  which  is  put  in  evidence 
the  movements  of  the  pulse  and  the  modifications 
in  volume  of  the  members  under  the  influence  of  an 
emotion  and  which  expresses  in  millimeters  the 
psychic  emotional  reaction — confirmed  me  in  the 
observation  of  his  great  insensibility  to  pain,  which 
was  not  changing  his  sphygmographic  lines;  the 
same  apathy  persisted  when  we  talked  to  him  of  the 
theft  on  the  train,  while  an  enormous  depression 
was  observed — a  lowering  of  14  millimeters — when 
we  talked  to  him  of  the  Torelli  theft.  I  concluded 
87 


CRIMINAL    PROCEDURE 

from  that  that  he  had  not  taken  any  part  in  the 
theft  on  the  train,  while  he  had  certainly  partici- 
pated in  the  Torelli  theft;  and  my  previsions  were 
completely  verified. 

"Gall — Marie,  66  years  old,  of  Lucera,  was  found 
dead  in  her  bed,  the  face  to  the  mattress,  the  nos- 
trils tinged  with  blood,  crushed  and  torn  internally. 
Suspicion  at  once  rested  on  her  two  sons-in-law, 
M —  and  F — ,  of  very  bad  reputation  and  who  had 
been  seen  prowling  around  in  the  vicinity  during 
the  day.  They  alone  had  interest  in  the  death  of 
the  victim,  who  was  upon  the  point  of  contracting 
a  life-annuity  which  would  disinherit  them. 

"At  the  autopsy  were  discovered  all  the  internal 
characteristics  of  advanced  putrefaction  and  of 
asphyxia,  and  in  the  aesophagus  was  found  a 
lombricoide  ascaris1  resting  upon  the  opening  of 
the  glottis.  Two  experts  declared  that  it  was  a  case 
of  asphyxia  caused  by  violent  suffocation  while  hold- 
ing the  victim  with  the  face  against  a  cushion,  the 
ascaris  having  been  brought  there  only  by  an  at- 
tack of  coughing.  Another  expert  admitted  the 
asphyxia,  but  was  unwilling  to  exclude  the  pos- 
sibility that  the  intestinal  worm  had  caused  it. 
Called  in  my  turn  to  give  superior  expert  testimony 
I  could  not  fail  to  observe  that  the  death  from 
asphyxia  provoked  by  lombricoides  are  always 
of  children  or  of  insane  persons  and  are  op- 
posed constantly  by  a  great  reaction  which  was 
completely  lacking  in  this  case;  that,  on  the  other 
hand,  the  witness  C —  declared  to  have  heard 

1  An  intestinal   worm. 

88 


ANTHROPOLOGY   AND   SOCIOLOGY 

suffocated  cries  on  the  night  of  the  crime  and  blows 
from  the  direction  of  the  room  of  the  victim;  and 
above  all,  that  the  accused  M —  was  anthropolog- 
ically and  judicially  suspected  of  the  crime  of 
which  he  had  been  openly  accused  by  his  brother, 
who,  much  less  criminal  than  he,  was  less  obdurate 
in  denial.  The  former  was,  in  fact,  most  completely 
the  type  of  the  born  criminal;  enormous  jaw, 
frontal  sinuses  and  zygomas,  thin  upper  lip,  huge 
incisors,  a  large  head  with  exaggerated  capacity, 
1620  cubic  centimeters,  an  obtuse  sense  of  touch, 
4.0  on  the  right  and  2.0  on  the  left  and  more  de- 
veloped on  the  right  than  on  the  left,  that  is  to  say, 
with  sensorial  mancinism.  He  was  condemned."1 

Criminal  anthropology  has  also  aided  in  saving 
or  at  least  in  rehabilitating  innocent  persons  who 
were  accused  or  condemned. 

"A  little  girl,  three  and  a  half  years  old,  having 
been  violated  and  infected  by  an  unknown  person, 
her  mother  accused  successively  six  young  men, 
living  on  the  same  staircase  and  who  were  ac- 
quainted with  the  little  girl.  They  were  arrested 
but  all  denied  the  crime.  I  picked  out  at  once 
from  among  them  one  having  obscene  tattoo  marks 
upon  the  arm,  a  sinister  physiognomy,  an  altered 
visual  field  and  upon  whom  we  found  the  traces  of 
a  recent  syphilis.  Later  this  individual  confessed 
his  crime."2 

"A  certain  Rossotto  Giacinto,  as  the  result  of  a 
series  of  false  indications  and  of  a  letter  received 

lLe  crime,  Paris,  1907,  pp.  529-531. 
2  Op.  cit.  p.  532. 

89 


CRIMINAL    PROCEDURE 

from  his  brother-in-law  who  begged  him  to  give 
false  testimony,  was  condemned  in  1866  to  life  im- 
prisonment for  highway  robbery.  On  examining 
this  man  before  students  I  ascertained,  to  my  great 
surprise,  that  he  was  the  most  normal  type  I  had 
ever  had  in  my  hands.  Height,  1.73  meters;  50 
years  of  age,  he  weighed  74.5  kilograms;  hair  and 
beard  abundant;  average  cranial  capacity,  1575 
cubic  centimeters;  cephalic  index,  84;  without 
facial  anomaly.  Very  fine  touch,  i.i  on  the  right, 
i.o  on  the  left,  0.5  on  the  tongue;  normal  general 
sensibility  (50),  and  to  pain,  30  millimeters;  he 
was  ignorant  of  the  professional  slang  and  was 
not  cynical.  He  manifested  the  spirit  common 
to  the  majority  of  average  men;  he  liked  work, 
which  had  been  during  his  long  years  of  captivity 
his  sole  consolation;  his  conduct  had  always  been 
exemplary;  even  in  prison  he  had  no  other  regret 
than  that  of  his  unjust  condemnation  and  of  the 
deprivation  of  his  family.  Married  at  19  years, 
he  had  never  known  any  other  woman  before, 
and  his  family  included  neither  insane  persons 
nor  criminals.  While  I  was  examining  him,  know- 
ing nothing  as  yet  of  his  antecedents,  I  said  to  the 
students :  'If  this  man  had  not  been  condemned  for 
life,  he  would  represent  for  me  the  true  type  of  the 
average  honest  man.'  It  was  then  that  the  unfor- 
tunate man  with  a  quiet  reaction  replied :  'But  I 
am  honest,  and  I  can  prove  it.'  And  he  put  at  my 
disposition  numerous  documents  proving  his  perfect 
respectability;  such  as  declarations,  on  the  death- 
bed, of  the  real  authors  of  the  crime  with  which  he 
90 


ANTHROPOLOGY   AND    SOCIOLOGY 

was  charged,  which  excluded  before  the  justice  of 
the  peace  all  complicity  on  his  part;  and  affidavits 
of  the  directors  of  the  prison,  etc.  His  neighbors, 
from  whom  I  gained  information,  after  my  study 
declared  him  a  perfectly  honest  man."1 

It  may  be  contended  that  by  means  of  these 
scientific  methods  absolute  certainty  cannot  be  at- 
tained and  that  therefore  ideal  justice  cannot  be 
administered.  But,  in  the  first  place,  very  few  be- 
lieve to-day  in  the  existence  of  absolute  justice. 
Justice  is  a  conception  which  has  grown  out  of  the 
relations  between  men  and  has  changed  as  these 
relations  have  changed.  In  the  second  place,  even 
in  administering  this  relative  ideal  of  justice  the 
existing  system  falls  very  far  short  of  certainty. 
Some  of  the  leading  modern  jurists  who  have  been 
most  positive  in  their  thought  have  recognized  that 
accuracy  can  be  obtained  only  to  the  degree  that 
the  methods  used  are  scientific  and  the  methods 
used  in  administering  justice  to-day  are  only  to  a 
small  degree  scientific.  In  the  law  of  evidence,  for 
example,  are  recorded  the  empirical  results  from  the 
observation  of  witnesses,  but  they  have  not  yet  been 
subjected  to  the  criticism  of  modern  psychology. 

It  is,  therefore,  with  confidence  that  by  means 
of  scientific  methods  the  greatest  accuracy  can  be 
obtained  and  justice  can  be  administered  according 
to  the  highest  existing  standard  of  justice  and  equity 
that  we  now  commence  our  study  of  the  applica- 
tions of  criminal  anthropology  and  sociology  to 
criminal  procedure. 

1Op.  cit.  p.  532. 

91 


CHAPTER  III 
SOCIETY  AND  THE  CRIMINAL 

It  is  the  custom  of  legal  writers  to  start  out  from 
an  abstract  definition  of  crime.  But  while  crime  is 
the  thing  that  society  is  fighting,  its  definition  is 
not  the  first  thing  we  can  determine  in  any  crim- 
inological  study,  if  indeed  it  is  not  the  very  last. 
This  is  because  crime  does  not  exist  in  the  ab- 
stract but  its  existence  depends  on  the  one  hand 
upon  certain  acts  committed  by  individuals  called 
criminals  and  on  the  other  hand  upon  the  effect 
these  acts  have  upon  other  individuals.  The  con- 
ception of  crime  arises  out  of  the  relations  between 
this  smaller  group  called  the  criminal  class  and  the 
larger  group  called  society  which  are  established 
by  these  acts  called  criminal.  To  arrive  at  an  ab- 
stract definition  of  crime,  therefore,  it  is  first  neces- 
sary to  study  these  two  groups  from  the  point  of 
view  of  this  relationship. 

The  criminal  anthropologists  have  sometimes 
been  criticized  for  beginning  their  work  without 
adopting  a  definition  of  crime.  But  it  is  evident 
from  the  above  paragraph  that  their  work  is  a 
necessary  step  towards  arriving  at  this  definition 
and  to  start  out  from  the  definition  which  should 
92 


SOCIETY  AND   THE   CRIMINAL 

be  their  goal  would  be  to  put  the  cart  before  the 
horse.  A  further  criticism  deduced  from  the  first 
one  has  been  that  if  the  criminal  anthropologists 
have  not  yet  adopted  a  definition  of  crime  how  can 
they  be  sure  that  the  persons  in  the  prisons  whom 
they  are  studying  have  been  guilty  of  crime.  But 
this  criticism  arises  out  of  this  conception  of  crime 
as  something  abstract.  The  fact  that  these  per- 
sons are  in  prison  is  strong  evidence  that  they  have 
committed  these  acts  which  are  called  criminal  be- 
cause they  have  a  certain  effect  upon  society. 

Nor  is  it  necessary  for  the  criminal  sociologist 
to  start  out  from  a  definition  of  crime,  for  his  in- 
ductions must  be  added  to  those  of  the  criminal 
anthropologist  before  the  synthesis  can  be  made 
from  which  will  come  the  definition  of  crime.  And 
as  this  synthesis  can  never  be  complete  on  account 
of  the  complexity  of  the  phenomena  involved  so 
this  definition  can  never  be  complete,  and  as  this 
synthesis  can  never  be  final  on  account  of  the 
changes  that  are  certain  to  take  place  so  this  defi- 
nition can  never  be  final. 

It  is,  therefore,  evident  that  it  is  impossible  to 
establish  a  precise  definition  of  crime  here.  Fur- 
thermore the  attempt  to  do  so  would  be  out  of  place 
in  this  study  since  this  is  a  contribution  towards  the 
synthesis  from  which  this  definition  must  come. 
But  while  this  precise  definition  is  impossible  it  will 
be  worth  while  to  indicate  what  kinds  of  definition 
must  be  eliminated  and  then  in  a  general  way  in 
what  terms  this  definition  must  be  expressed.  To 
do  this  it  will  be  necessary  to  review  briefly  some 
93 


CRIMINAL    PROCEDURE 

of  the  definitions  of  crime  which  have  been  formu- 
lated and  this  review  will  also  prove  the  impractica- 
bility of  formulating  a  definition  here. 

The  commonest  kind  of  definition  of  crime  is  the 
legal  definition,  of  which  the  following  are  a  num- 
ber of  examples: 

"A  crime  is  an  act  committed  or  omitted  in  vio- 
lation of  a  public  law,  either  forbidding  or  com- 
manding it." 

A  crime  is  "an  offense  which  is  pursued  by  the 
sovereign,  or  by  the  subordinates  of  the  sovereign." 

"A  crime  is  a  wrong,  directly  or  indirectly  af- 
fecting the  public,  to  the  commission  of  which  the 
state  has  annexed  certain  pains  and  penalties,  and 
which  it  prosecutes  and  punishes  in  its  own  name." 

These  illustrations  show  that  according  to  the 
legal  definition  a  crime  is  an  act  designated  by  the 
law,  the  sovereign  or  the  state  as  the  case  may  be. 
But  the  reasons  why  these  acts  are  picked  out  are 
not  indicated,  except  in  a  very  vague  way  in  the 
third  example  according  to  which  a  crime  is  a 
wrong  affecting  the  public.  The  legal  definition, 
therefore,  does  not  help  us  to  a  knowledge  of  the 
inherent  nature  of  crime.  Furthermore,  the  same 
acts  have  not  been  considered  criminal  at  different 
periods  of  time  and  are  not  considered  criminal  in 
different  codes  at  the  same  time.  This  indicates 
that  it  is  not  possible  to  draw  up  a  list  of  acts 
which  have  always  and  universally  been  considered 
criminal.  It  is  therefore  evident  that  a  definition 
of  crime  cannot  be  derived  from  a  study  of  crim- 
inal acts  alone. 

94 


SOCIETY  AND  THE  CRIMINAL 

It  is  this  consideration  which,  as  we  have  al- 
ready seen,  led  Garofalo  to  search  elsewhere  for  a. 
definition  of  crime.  "If  it  is  necessary  then  to  give 
up  the  possibility  of  forming  a  catalogue  of  acts 
universally  hated  and  punished  in  whatever  time 
or  place,  is  it  likewise  impossible  to  grasp  the  idea 
of  the  natural  offense  ?  We  do  not  believe  so ; 
but,  in  order  to  attain  it  it  is  necessary  to  change 
the  method,  to  abandon  the  analysis  of  acts  and 
to  undertake  that  of  the  feelings.  Crime,  in  fact, 
is  always  a  harmful  act  which,  at  the  same  time, 
wounds  some  of  these  feelings  which  it  has  been 
agreed  to  call  the  moral  sense  of  a  human  aggrega- 
tion."1 But  before  beginning  this  analysis  of  the 
feelings  he  draws  a  distinction  between  the  "natural 
offense"  (delit  naturel)  which  offends  the  moral 
sense  and  conscience  and  the  "legal  offense"  (delit 
legal)  which  is  artificially  created  by  the  law,  as, 
for  example,  for  political  reasons  or  for  certain 
peculiar  conditions.  A  similar  distinction  existed 
in  the  Roman  law  between  the  crimes  showing 
moral  turpitude  (natura  turpia  sunt)  and  those 
created  for  the  common  security  (civil  iter  et  quasi 
more  civitatis).  The  same  distinction  exists  in 
the  English  common  law  between  "common  crimes" 
(mala  in  se)  and  "statutory  crimes"  (mala  pro- 
hibita) . 

On  the  psychological  basis  of  the  analysis  of  the 
feelings  he  commences  his  search  for  the  definition 
of  the  "natural  offense."  He  traces  the  evolution  of 
the  moral  sense  and  the  development  of  sympathy 

1  La  criminologie,  Paris,  1905,  p.  5. 
95 


CRIMINAL    PROCEDURE 

between  similar  persons.  Out  of  this  sympathy 
has  grown  the  ego-altruistic  feeling  of  pity  which 
is  a  dislike  to  inflict  on  others  suffering  which  we 
ourselves  have  endured.  Later  was  developed  the 
more  altruistic  feeling  of  justice  which  manifests 
a  solicitude  for  the  interests  of  others.  This  feel- 
ing when  it  manifests  itself  as  a  respect  for  what 
belongs  to  another  he  calls  probity.  He  then  comes 
to  the  conclusion  that  for  an  act  to  be  criminal  it 
must  violate  one  or  both  of  these  two  fundamental 
altruistic  feelings  of  pity  and  of  probity,  as  they  are 
possessed  on  the  average  in  the  community. 

In  making  the  distinctive  characteristic  of  crime 
subjective,  the  author  of  this  definition  has  made 
it  general  as  to  time  and  place.  But  it  is  not  com- 
plete, as  he  himself  has  recognized,  because  it  does 
not  include  violations  of  other  feelings,  such  as  that 
of  modesty. 

A  distinguished  sociologist,  Durkheim,  has  pro- 
posed ^he  following  definition  of  crime :  "An  act  is 
criminal  when  it  offends  the  vigorous  and  well-de- 
fined states  of  the  collective  consciousness."1  This 
definition  is,  to  begin  with,  too  vague.  It  is  subjec- 
tive in  taking  into  account  the  violation  of  feelings. 
But  it.  does  not  consider  the  subjective  conditions 
of  the  author  of  the  acts  and  is  therefore  too  ob- 
jective. Under  this  definition  could  be  included 
accidents  where  no  criminal  motive  existed.  It  is 
entirely  sociological  and  juridical  in  its  character. 

As  I  have  said  at  the  beginning  of  this  chapter, 
crime  depends  for  its  existence  "on  the  one  hand 

1De  la  division  du  travail  social,  Paris,  1902,  p.  47. 
96 


SOCIETY   AND   THE   CRIMINAL 

upon  certain  acts  committed  by  individuals  called 
criminals  and  on  the  other  hand  upon  the  effect 
these  acts  have  upon  other  individuals."  It  is, 
therefore,  necessary  in  formulating  a  definition  of 
crime  to  consider  these  acts  both  as  committed  by 
the  criminal  and  as  affecting  society. 

Ferri  recognizes  that  it  is  not  yet  time  to  formu- 
late a  definition  of  crime  and  believes  that  there  will 
be  no  ultimate  synthesis.  While  therefore  he  at- 
tempts no  definition  of  crime  he  indicates  what  that 
definition  should  include.  He  is  careful,  as  al- 
ways, to  recognize  both  the  biological  and  social 
aspect  of  crime.  "The  characteristic  elements  of 
the  natural  offense  are  the  anti-sociality  of  the  de- 
termining motives  and  the  injury  done  to  the  con- 
ditions of  existence  (individual  or  social)  which 
imply  the  elements  of  offense  to  the  average  moral- 
ity of  a  determinate  collective  group." 

The  attempts  to  formulate  a  scientific  definition 
of  crime  have  been  useful  in  stirring  up  discussion 
and  in  showing  at  what  stage  the  synthesis  of 
criminality  has  arrived.  But  the  incompleteness 
of  all  these  definitions  shows  that  we  cannot  yet 
hope  to  formulate  with  any  degree  of  success  a 
definition  of  crime.  We  are  therefore  justified  in 
continuing  this  study  without  attempting  a  precise 
definition.  For  the  practical  purposes  of  this  book 
the  lack  of  such  a  definition  is  no  obstacle  for  we 
always  have  the  concrete  elements  of  crime  before 
us  in  the  acts  of  criminals  and  their  effect  upon 
society.  The  only  person  who  can  take  exception 
to  this  lack  are  those  who  start  out  with  an  a  priori. 
97 


CRIMINAL    PROCEDURE 

abstract  conception  of  crime  according  to  which 
these  acts  do  or  do  not  constitute  crime.  But  we 
believe  that  crime  exists  only  in  these  concrete  ele- 
ments and  the  definition  about  which  we  have  been 
speaking  will  merely  describe  in  abstract  form 
what  exists  only  in  the  concrete.  We  can,  there- 
fore, continue  our  study  of  these  concrete  elements 
of  crime. 

We  must  now  study  this  relation  which  is  estab- 
lished between  society  and  the  criminal  by  the  com- 
mission of  crime.  This  relation  is  but  one  ex- 
ample of  the  general  relation  between  society  and 
the  individual.  But  the  character  of  this  relation 
is  very  much  accentuated  in  this  particular  case 
because  of  the  injury  which  has  been  done  to  the 
rights  created  by  the  relation.  It  would  not  be 
possible  within  the  narrow  limits  of  this  chapter  to 
discuss  fully  the  character  of  the  relation  between 
society  and  the  -^dividual  which  is  a  subject  to 
which  much  thought  and  many  books  have  been 
devoted.  But  it  will  be  necessary  to  call  to  mind 
a  few  of  the  principal  facts  with  regard  to  this  re- 
lation in  order  to  furnish  a  theoretic  basis  for  the 
treatment  of  the  criminal  by  society. 

In  the  first  place  it  must  be  remembered  that  the 
criminal,  like  every  other  individual,  is  the  product 
of  society.  There  are  very  few  individuals  who 
pass  their  lives  in  solitude  away  from  the  influence 
of  society.  As  we  have  seen,  heredity  is  in  fact 
the  cumulative  result  of  social  environment  in  the 
past.  The  part  of  heredity  which  is  not  the  prod- 
uct of  society  is  made  up  of  that  part  which  dates 
98 


SOCIETY  AND   THE   CRIMINAL 

l>ack  of  the  origin  of  society  and  the  part  which 
comes  from  the  physical  environment.  It  would 
be  impossible  to  estimate  what  proportion  this  part 
bears  to  the  whole.  But  as  this  proportion  is  ap- 
proximately the  same  for  all  we  can  at  least  say 
that  all  are  to  the  same  degree  the  product  of 
society.  This  equality  would  seem  to  be  broken 
in  the  case  of  criminals  with  atavistic  traits  which 
date  back  of  the  origin  of  social  life.  But  if  these 
traits  are  caused  by  degeneracy  their  appearances 
may  then  be  attributed  to  social  life. 

We  may,  therefore,  ignore  the  extra-social  ele- 
ments in  heredity  and  proceed  on  the  assumption 
that  the  criminal  is  the  product  of  society.  If  this 
be  the  case  it  would  seem  that  society  is  responsible 
for  crime  and  criminals.  This  idea  has  been  ex- 
pressed by  Lacassagne  in  a  statement  which  is  one 
of  his  fundamental  principles:  "Societies  have 
the  criminals  they  deserve."1  This  statement 
would  seem  to  imply  that  society  is  to  blame  for 
the  criminals  it  contains.  But  this  idea  is  rather 
absurd  since  society  is  not  a  person  with  a  will  and 
independent  power  of  action.  Furthermore  this 
statement  gives  no  indications  of  the  hereditary 
and  physical  causes  of  crime  which  we  are  neglect- 
ing because  of  the  impossibility  of  measuring  them, 
but  which  nevertheless  exist.  This  is  not  a  moral 
question  at  all  but  a  scientific  one  of  cause  and  ef- 
fect. The  scientific  fact  which  this  statement  very 
vaguely  indicates  is  that  at  a  given  moment  in  a 

1  Archives  de  I'anthropologie  criminelle  et  des  sciences 
penales,  Lyons,  1891. 

99 


CRIMINAL    PROCEDURE 

community  the  amount  of  criminality  is  in  direct 
proportion  to  the  criminal  forces  then  existing  in 
< "'"  the  community.  Ferri  has  very  aptly  expressed 
this  fact  in  his  law  of  criminal  saturation  which  I 
have  already  quoted.  According  to  this  law  in  a 
given  social  environment  at  a  given  moment  a 
determinate  number  of  crimes  will  be  committed 
just  as  in  a  given  volume  of  water  at  a  given  tem- 
perature will  be  dissolved  a  determinate  quantity 
of  a  chemical  substance.  This  is  no  more  than  an 
affirmation  of  the  familiar  law  of  the  conservation 
of  energy.  But  it  is  so  easy  to  forget  that  this 
law  applies  to  crime  just  as  it  does  to  all  other 
phenomena  that  it  is  worth  while  to  reaffirm  it. 

In  the  second  place  it  must  be  remembered  that 
society  is  made  up  of  individuals  and  does  not 
exist  apart  from  these  individuals.  Anything  done 
in  the  name  of  the  social  welfare  is  done  for  these 
individuals.  The  question  may  at  once  be  raised 
from  whence  comes  the  sanction  by  means  of 
which  duties  and  restrictions  can  be  imposed  upon 
individuals  in  the  name  of  this  social  welfare. 
Many  theories  have  been  formulated  to  answer 
this  question.  The  most  famous  of  these  and  the 
one  which  has  had  most  influence  in  modern  times 
is  that  of  the  social  contract.  According  to  this 
theory  each  member  of  society  surrenders  volun- 
tarily an  equal  amount  of  liberty  in  order  to  receive 
back  the  advantages  of  union  with  others.  The 
sanction  for  the  punishment  of  criminals  is  very 
easily  deduced  from  this  theory.  "Every  malefactor, 
attacking  the  social  law,  becomes  by  his  transgres- 
100 


CRIMINAL    PROCEDURE 

sions  rebel  and  traitorous  to  the  country;  he 
ceases  to  be  a  member  of  it  in  breaking  its  laws, 
and  he  even  makes  war  against  it.  Then  the  pre- 
servation of  the  state  is  incompatible  with  his 
preservation;  it  is  necessary  that  one  of  the  two 
should  perish,  and  when  the  guilty  one  is  killed  it 
is  less  as  a  citizen  than  as  an  enemy."1  This  theory 
describes  the  existing  conditions  in  the  civilized 
countries  of  the  world  and  limits  the  restraints 
upon  the  individual  within  the  bounds  of  social 
welfare.  But  its  hypothesis,  that  men  have  con- 
sciously and  voluntarily  formed  this  contract  in 
the  past,  is  disproved  by  history  so  that  we  shall 
have  to  search  elsewhere  for  the  sanction  for  social 
restraint  upon  the  individual  and  in  particular  for 
the  punitive  treatment  of  the  criminal  by  society. 

One  of  the  most  salient  facts  in  the  organic  world 
is  the  struggle  for  existence  in  which  every  living 
being  is  engaged  in  one  form  or  another.  This 
struggle  for  existence  is  made  possible  for  living 
beings  by  the  ability  of  organic  matter  to  respond 
to  impressions  from  outside,  a  characteristic  which 
is  not  possessed  by  inorganic  matter.  This  ability 
in  the  lowest  forms  of  life  consists  only  in  a  faint 
irritability  or  sensibility  which  responds  by  means 
of  automatic  movements.  But  as  organic  matter 
becomes  more  complex  and  consciousness  of  the 
external  world  is  acquired  the  kinds  of  response 
become  very  varied.  So  it  comes  to  pass  that  in 
this  struggle  for  existence,  members  of  the  higher 
species  react  against  that  which  injures  them. 

1J.  J.  Rousseau:  Du  conirat  social,  Livre  II,  Ch.  5. 
101 


CRIMINAL    PROCEDURE 

This  reaction  varies  in  its  manifestation  according 
to  the  object  which  causes  the  injury.  When  this 
object  is  a  living  being  of  the  same  or  of  another 
species,  this  reaction  takes  the  form  of  defense 
either  to  prevent  the  immediate  injury  or  if  that  be 
too  late  to  prevent  further  injury  in  the  future. 
In  the  first  case  a  personal  combat  usually  results, 
in  the  second  case  the  injured  party  seeks  for  an 
opportunity  to  wreak  vengeance  upon  the  one  who 
has  done  the  injury. 

This  form  of  individual  reaction  manifests  it- 
self in  primitive  man  as  in  other  species  of  living 
beings.  But  as  social  life  develops  among  human 
beings  this  individual  reaction  is  absorbed  by  a 
form  of  social  reaction.  It  becomes  evident  that 
certain  acts  by  its  members  are  injurious  to  society 
as  a  whole  and  society  therefore  reacts  against 
them.  In  the  earliest  form  of  social  organization, 
the  tribe,  this  power  of  social  reaction  was  usu- 
ally vested  in  the  chief  of  the  tribe.  He  was  at 
first  not  only  legislator  but  also  judge  and  ex- 
ecutor of  the  law.  A  reminiscence  of  this  prim- 
itive stage  of  justice  is  still  to  be  found  in  the 
principle  which  still  exists  in  some  countries  that 
"justice  emanates  from  the  king."  But  as  the 
social  organization  became  more  complex  and  its 
functions  more  numerous,  it  became  necessary  for 
the  chief  to  delegate  some  of  his  powers.  In  ad- 
dition to  being  the  military  and  civil  head  of  the 
tribe  the  chief  was  also  its  religious  head.  His 
religious  functions  he  delegated  to  priests.  Up  to 
this  point  social  reaction  against  crime  had  been 
102 


SOCIETY  AND   THE   CRIMINAL 

purely  defensive  for  the  conservation  of  society. 
But  now  the  priests  secured  control  first  of  the  re-  1 1 
pression  of  anti-religious  acts  and  finally  of  all 
anti-social  acts  and  by  so  doing  gave  to  the  re- 
pression a  religious  character.  Consequently  this 
defensive  reaction,  which  was  first  private  ven- 
geance  by  the  injured  person  or  by  his  family 
and  then  public  vengeance  by  the  chief  of  the  tribe, 
now  became  divine  vengeance  and  was  administered 
with  religious  formalism  and  in  a  spirit  of  peni- 
tence and  purification.  When  the  priests  lost  their 
civil  and  political  power  they  lost  control  of  the 
penal  functions  first  for  political  offenses  and  then 
for  common  crimes.  But  the  penal  function  car- 
ried with  it  from  its  religious  stage  its  moral  char- 
acter so  that  crime  was  still  regarded  as  a  moral 
fault  and  justice  as  a  retribution  for  sin.  So  that 
the  penal  functions,  after  having  passed  through  a 
primitive  stage  when  it  was  a  vindictive,  defensive  . 
reaction,  individual  or  social,  and  then  a  religious 
stage  which  gradually  passed  into  an  ethical  stage, 
reached  the  present  stage  when  it  is  juridical  in  its 
form,  being  administered  in  accordance  with  a 
body  of  laws,  but  to  it  is  given  an  ethical  signifi- 
cance. Among  modern  criminologists  there  has 
been  a  tendency  to  base  the  right  to  punish  on 
such  social  reasons  as  "social  utility,"  "direct  de- 
fense," "political  necessity."  Among  these  crim- 
inologists may  be  mentioned  Beccaria,  Bentham, 
Romagnosi,  Comte,  Carmignani,  etc.  These  ideas 
have  had  a  great  deal  of  influence  on  penal  legisla- 
tion, much  of  it  having  been  adjusted  with  a  view 
103 


CRIMINAL    PROCEDURE 

to  its  social  value.  But  there  has  been  retained  by 
these  criminologists  and  in  all  penal  systems  the 
criterion  of  responsibility  or  of  moral  culpability 
so  that  the  penal  function  is  not  yet  purely  de- 
fensive in  its  character. 

These  are  the  principal  stages  through  which  the 
penal  function  has  passed  since  its  origin.  They 
show  the  difficulty  of  deducing  an  a  priori  basis  for 
the  right  to  punish.  But  by  means  of  the  positive 
and  inductive  method  of  tracing  it  from  its  origin 
we  have  arrived  at  a  satisfactory  basis.  We  have 
seen  that  from  its  earliest  predecessor  in  the  auto- 
matic reaction  of  the  lowest  forms  of  life,  through 
the  progressive  development  and  variation  of  this 
reaction  to  the  earliest  form  of  the  conscious  re- 
action of  one  individual  being  against  another  who 
has  done  it  injury,  and  through  the  development  of 
this  individual  reaction  into  a  social  reaction  ex- 
hibited occasionally  among  animals  but  in  its 
present  complex  form  only  among  men,  in  all  this 
long  and  slow  evolution  we  see  one  aspect  of  the 
struggle  for  existence.  And  in  this  fact  we  find 
ample  justification  for  the  penal  function.  Just  as 
the  lower  animals  react  against  members  of  their 
own  species  or  of  other  species  who  injure  them, 
so  man,  by  means  of  his  social  organization  reacts 
against  those  of  its  members  who  do  it  injury.  So 
it  is  that  the  right  to  punish  is  based  upon  the 
necessity  of  social  defense,  a  necessity  imposed  by 
the  struggle  for  existence. 

But  this  necessity  for  social  defense  must  now  be 
defined  more  fully  in  order  to  indicate  just  what  it 
104 


SOCIETY  AND  THE  CRIMINAL 

implies.  And  first  must  be  recalled  the  two  prin- 
ciples which  were  stated  at  the  beginning  of  this 
discussion,  namely,  that  each  individual  is  a  member 
and  to  a  large  extent  a  product  of  society,  and,  on 
the  other  hand,  what  is  the  reverse  aspect  of  the 
same  fact  that  society  is  made  up  of  individuals  and 
that  social  welfare  is  no  more  than  the  welfare  of 
these  individuals.  These  principles  must  be  kept 
in  mind  and  constantly  applied  in  every  discussion 
of  this  delicate  balance  between  the  rights  of  society 
and  of  the  individual.  It  is,  therefore,  evident 
that  in  this  discussion  we  must  recognize  both  the 
criminal  and  society.  To  the  criminal  as  to  every 
individual  belongs  every  right  and  liberty  which 
does  not  encroach  upon  the  rights  and  liberties  of 
others,  and  the  fact  that  the  peculiar  character  of 
criminals  and  their  acts,  which  do  encroach  on  the 
rights  of  others,  necessitates  a  greater  limitation 
than  usual  upon  them  must  not  blind  our  eyes  to 
their  fundamental  rights  as  individuals.  On  the 
other  hand  society,  in  defense  of  the  social  welfare, 
has  the  right  to  restrain  persons,  such  as  criminals, 
who  are  encroaching  upon  the  rights  and  liberties 
of  others.  By  doing  so  it  will  administer  justice, 
which  is,  as  Spencer  has  said,  "the  liberty  of  each 
limited  only  by  the  equal  liberty  of  others."1 

These  principles,  couched  as  they  are  in  juridical 
and  philosophic  terms,  may  seem  too  a  priori  and 
deductive  in  character.  But  they  are  in  reality  in- 
ductions based  upon  a  study  of  the  origin  and  evo- 
lution of  the  penal  functions  and  merely  restate  the 

1H.  Spencer:  Justice,  London,  1891. 
105 


CRIMINAL    PROCEDURE 

principle  of  social  defense.  By  defining  in  greater 
detail  the  principle  of  social  defense  the  inductive 
character  of  these  principles  will  be  shown  more 
clearly  than  ever. 

We  have  seen  that  the  early  forms  of  reaction, 
'    individual  and   social,   from  which  originated   the 
;  penal  function  were  inspired  by  a  feeling  of  ven- 
•  geance.     Though   the   motive    for   vengeance    was 
i  defense,  individual  or  social,  it  frequently  went  be- 
yond the  necessities  of  defense  in  its  blind  passion. 
Thus  it  overreached  itself  and  frequently  did  posi- 
tive  social   injury,  as   when   a   whole   family  was 
destroyed  on  account  of  the  offense  of  one  of  its 
members.     Later  when  the  penal  function  assumed 
a   religious   and   moral   character   additional   force 
was  given  to  this  feeling  of  vengeance  and  punish- 
ment was  carried  still  further  beyond  the  bounds 
of  social  defense.     This  feeling  of  vengeance  still 
has  its  influence.     Social  vengeance  is  occasionally 
referred  to  in  the  courts  while  it  manifests  itself 
outside  of  the  law  every  time  a  mob  takes  the  law 
into  its  own  hands.     When  a  lynching  takes  place, 
for  example,  the  mob  is  inspired  by  the  necessity 
of   defending   itself  against  a  dangerous   kind  of 
crime  and  criminal,  but  in  its  blind  rage  it  is  fre- 
quently carried  much  beyond  the  necessity  of  de- 
fense.    And  here  may  be  noted  the  incapacity  of 
the  spirit  of  vengeance  for  administering  justice. 
While  it  may  be  inspired  by  the  legitimate  motive 
f  defending  itself  it  is  incapable  of  judging  calmly 
and  wisely  what  measures  social  defense  dem 
and  then  going  no   further   than  those  measures. 
106 


SOCIETY  AND  THE  CRIMINAL 

Justice  administered  in  a  vindictive  spirit  tends  to 
carry  too  far  the  authority  of  society  over  the  in- 
dividual and  thus  destroys  the  balance  between 
social  and  individual  rights. 

Another  circumstance  which  has  tended  to  des- 
troy this  balance  in  favor  of  social  authority  has 
been  an  autocratic  or  strongly  centralized  govern- 
ment.   As   we   have   seen,    in    the    earliest    social 
organization,  the  tribe,  the  power  of  the  penal  func-  \ 
tion  was  usually  vested  in  the  chief.     Later  when  '. 
society   grew   more   complex    it   was   vested   in   a  \ 
strongly  centralized   government   which  has   been 
the  usual  form  of  government  throughout  history. 
It  was  to  be  expected  that  in  such  a  form  of  gov- 
ernment the  individual  should  be  ignored  and  that 
social  power  should  be  used  to  an  excessive  extent 
in  repressing  crime.  The  modern  rise  of  democracy 
was  necessary  to  reassert  the  rights  of  the  individ- 
ual. 

It  was  the  arbitrariness  and  cruelty  of  the  repres- 
sion resulting  from  this  excessive  use  of  social 
authority  against  which  the  eighteenth  century 
philosophers  protested.  They  were  then  proclaim- 
ing the  democratic  doctrine  of  the  equality  of  men 
against  the  usurpations  of  power  by  autocrats  and 
tyrants.  The  classical  school  applied  this  doctrine 
of  equality  by  setting  up  as  a  standard  of  punish- 
ment the  character  of  the  crime  committed  by  the 
criminal.  Its  object  in  doing  so  was  the  very 
generous  one  of  putting  all  men  on  an  equality  be- 
fore the  law.  But  it  failed  to  see  that  in  doing  so  it 
was  crippling  to  a  considerable  extent  the  function 
107 


CRIMINAL    PROCEDURE 

of  social  defense  in  preventing  it  from  adjusting 
its  measures  to  the  character  of  each  criminal. 
Thus  it  made  impossible  the  individualization  of 
punishment,  the  importance  of  which  for  an  efficient 
social  defense  will  be  shown  in  the  next  chapter. 
It  will  therefore  be  sufficient  to  say  here  that  in 
failing  to  discriminate  between  criminals  the  clas- 
sical school  was  guilty  of  an  exaggeration  of  indi- 
vidualism. 

The  classical  school  adopted  as  a  basis  for  pun- 
ishment the  moral  responsibility  of  the  criminal 
Theoretically  this  had  been  the  basis  of  punishment 
for  a  long  time  previous,  but  the  judges,  having 
acquired  an  arbitrary  power,  tended  to  ignore  this 
principle  and  adjust  the  punishment  to  the  danger- 
ousness  of  the  criminal.  In  other  words,  they 
were  individualizing  punishment  regardless  of 
moral  guilt  but  in  a  very  crude  and  empirical  man- 
ner since  they  did  not  then  have  any  accurate 
standard  of  judgment.  The  classical  school  in 
adopting  moral  responsibility  as  a  basis  for  punish- 
ment was  endeavoring  to  introduce  equality  into 
the  treatment  of  criminals,  but  as  in  the  previous 
case  it  was  again  guilty  of  an  exaggeration  of  in- 
dividualism. It  will  now  be  necessary  to  consider 
carefully  this  question  of  penal  responsibility  in 
order  to  determine  on  what  grounds  the  criminal 
can  be  held  responsible  for  his  acts. 

This  idea  of  moral  responsibility  was  introduced 
into  the  treatment  of  criminals  by  religion  from 
its  doctrine  of  free  will.  According  to  this  doc- 
trine man  is  free  to  act  as  he  chooses.  He  is, 
108 


SOCIETY   AND   THE   CRIMINAL 

therefore,  able  to  act  well  or  ill  according-  to  his  own 
choice.  If  then  he  chooses  to  act  ill  he  is  respons- 
ible for  his  act  and  should  be  punished  for  it.  It 
is  not  possible  to  enter  into  an  exhaustive  discus- 
sion of  the  arguments  for  and  against  a  belief  in 
the  freedom  of  the  will  and  in  any  case  this  is 
hardly  the  place  for  such  a  discussion.  But  inas- 
much as  the  doctrine  of  free  will  is  still  very  gen- 
erally accepted  as  a  basis  for  penal  responsibility 
it  will  be  necessary  to  call  attention  to  several  facts 
in  connection  with  this  doctrine. 

In  the  first  place  this  doctrine  has  always  been 
seriously  questioned.  Many  philosophers  might  be 
cited  in  this  connection,  as  for  example,  Spinoza, 
who  said  that  "the  consciousness  of  our  liberty  is 
only  the  ignorance  of  the  causes  which  make  us 
act."  Even  in  religious  circles  it  has  been  denied 
as  by  Calvin  who  believed  in  the  predestination  of 
human  acts.  But  the  strongest  evidence  against 
the  doctrine  of  free  will  has  been  furnished  by  the 
modern  science  of  physiological  psychology.  This 
new  science  has  been  studying  the  evolution  and 
nature  of  the  psychological  processes  of  thinking 
and  willing  and  the  human  personality.  It  has 
started  from  the  origin  of  all  psychic  phenomena 
in  the  sensitiveness  to  outer  forces  of  the  elementary 
form  of  organic  matter  which  responds  with  a 
simple  reaction  and  has  traced  the  development  of 
these  phenomena  to  their  most  complex  form  in  the 
self-consciousness  of  man.  No  one  has  ever 
thought  of  attributing  moral  liberty  to  the  lowest 
forms  of  animal  life  such  as  the  protists.  The 
109 


CRIMINAL    PROCEDURE 

evolution  of  the  highest  forms  of  psychic  phenomena 
from  the  lowest  has  been  by  means  of  a  continuous 
series  of  actions  and  reactions  between  organic 
and  inorganic  matter.  At  no  point  in  this  evolu- 
tion is  there  any  evidence  that  the  power  of  moral 
liberty  has  been  introduced.  The  introduction  of 
such  a  power  would  be  an  exception  to  the  law  of 
the  conservation  of  energy  which  is  the  funda- 
mental principle  of  science  and  would  therefore 
destroy  the  foundation  of  modern  science. 

Furthermore  a  study  of  human  psychic  processes 
furnishes  no  evidence  of  the  existence  of  a  free 
will.  These  processes  may  be  sketched  in  a  few 
words  as  follows :  A  sensation  from  the  outer  world 
or  from  within  the  body  goes  by  means  of  an  in- 
going or  efferent  nerve  to  a  nerve  center.  There 
it  stimulates  a  vibration  along  an  out-going  or  af- 
ferent nerve  which  results  in  a  muscular  movement 
or  mechanical  action  of  some  sort  in  some  part  of 
the  body.  The  majority  of  these  muscular  and 
mechanical  reactions  are  unconscious  and  reflexive 
so  that  we  need  not  stop  to  consider  the  forces  that 
determine  their  character.  But  some  of  these  are 
conscious  and  here,  if  anywhere,  resides  the  power 
of  a  moral  freedom  of  choice.  In  these  cases  the 
individual  is  aware  of  an  act  before  he  commits  it 
and  also  is  aware  sometimes  of  the  possibility  of 
committing  one  of  several  different  acts,  one  of 
which  he  finally  commits.  Or  he  may  be  aware  of 
the  possibility  of  committing  one  or  more  acts  but 
finally  desists  from  committing  any  of  them. 
These  are  the  circumstances  under  which  the  in- 
no 


CRIMINAL    PROCEDURE 

dividual  gains  the  impression  that  he  is  exercising 
a  freedom  of  choice.  But  a  study  of  the  mechan- 
ism of  judgment  does  not  reveal  any  such  free- 
dom.1 When  a  sensation  comes  to  the  highest  and 
most  complex  nerve  center,  the  brain,  it  stimulates 
an  impulsion  just  as  in  the  lower  nerve  centers. 
But  here  are  accumulated  the  records  of  all  past 
sensations  which  have  come  to  the  brain  and  which 
are  of  a  great  variety.  Some  of  these  past  sensa- 
tions are  awakened  by  this  new  sensation  and  its 
impulsion  by  means  of  the  paths  of  association. 
Some  of  these  awakened  sensations  may  oppose 
the  impulsion,  others  may  strengthen  it,  while  still 
others  may  attract  it  in  other  directions.  This 
conflict  of  forces  will  cause  a  delay  and  the  judg- 
ment will  be  the  resultant  of  these  forces.  Thus 
we  see  that  the  judgment  is  a  mechanical  process 
admitting  no  freedom  of  choice. 

Out  of  this  mass  of  accumulated  sensations, 
called  the  memory,  self-consciousness  is  evolved. 
By  means  of  the  memory  the  present  state  of  con- 
sciousness is  connected  with  past  states  of  con- 
sciousness. From  the  sense  of  continuity  thus 
obtained  is  developed  the  consciousness  of  a  self 
independent  of  other  selves.  The  memory  is  also 
the  basis  of  personality,  which  is  indeed  only  the 
sum  total  of  all  past  sensations.  To  this  person- 
ality expression  is  given  every  time  a  new  sensa- 
tion awakens  past  sensations.  If  the  brain  is 
strong  and  vital  with  a  high  degree  of  nervous 
tonicity  it  will  exercise  a  powerful  control  over  the 

1  Maurice  de  Fleury:  L'ame  du  criminel,  Paris,  1898. 
Ill 


CRIMINAL    PROCEDURE 

new  sensation.  If  it  is  weak  and  inert  the  new 
sensation  will  triumph  easily  over  past  sensations. 
In  this  process  one  of  the  principal  elements  of  the 
personality,  namely  the  volition,  is  manifested.  In 
the  first  case  cited  above  a  strong  volition  is  mani- 
fested, in  the  second  a  weak  one.  We  see  that 
volition  is  determined  by  the  conditions  of  the 
nervous  system  and  not  by  a  moral  freedom  of 
choice.  There  are  many  evidences  of  this  as,  for 
example,  the  influence  upon  the  volition  of  stimu- 
lants such  as  tea,  coffee  and  alcohol  and  of  nar- 
cotics. The  diseases  of  the  volition1  also  give 
evidence  of  this  control  of  the  volition  by  the  nerv- 
ous system.  Alcoholism,  excessive  debauchery,  etc., 
in  the  individual  or  in  his  heredity  may  result  in 
such  constitutional  diseases  as  neurasthenia,  de- 
generacy, etc.,  which  weaken  and  even  completely 
destroy  the  power  of  volition.  In  other  cases  ab- 
normal or  pathological  organic  conditions  will  in- 
crease the  impulsiveness  of  the  volition  or  will  turn 
it  into  unhealthy  or  even  dangerous  channels. 

These  are  the  inductions  of  the  modern  science 
of  physiological  psychology  which  seriously  ques- 
tion if  indeed  they  do  not  completely  disprove  the 
doctrine  of  free  will.     In  view  of  this  fact  is  it 
wise  to  base  criminal  legislation  on  a  foundation  so 
uncertain  and  unstable  and  which  is  being  attacked 
\  and  shaken  from  all  sides?     Should  not  search  be 
f-made  for  some  other  foundation  for  penal  respon- 
sibility?   The  necessity  for  such  a  search  has  been 
recognized  even  by  some  who  retain  a  belief  in  free 

1T.  Ribot:  Les  maladies  de  la  volonte,  Paris. 
112 


SOCIETY   AND   THE   CRIMINAL 

will  but  do  not  regard  it  as  a  practical  basis  for 
criminal  treatment.  The  impracticability  of  a 
criterion  of  moral  responsibility,  regardless  of 
whether  or  not  moral  liberty  exists,  on  account  of 
the  difficulty  of  applying  it  in  each  particular  case 
is  sufficient  reason  for  abandoning  this  criterion. 
This  difficulty  arises  out  of  the  mysterious  char- 
acter of  this  moral  liberty  which  eludes  all  at- 
tempts at  measurement,  and  its  application  in  the 
treatment  of  criminals  has  resulted  in  many  false 
deductions  and  absurd  situations.  Furthermore 
the  negation,  or  to  say  the  least,  the  ignoring  of 
the  existence  of  a  free  will  has  great  practical  value 
because  it  encourages  those  preventive  measures 
whose  object  it  is  to  influence  and  govern  human 
volition  by  social  motives. 

Many  attempts  have  been  made  to  harmonize  the 
doctrine  of  free  will  with  the  data  of  modern 
science  by  means  of  a  theory  of  limited  liberty.  It 
would  be  possible  to  show  the  illogicalness  of  such 
a  theory  from  a  philosophic  point  of  view.  But 
more  important  for  the  considerations  of  our  pres- 
ent study  is  the  dangerousness  of  this  theory  when 
formulated  in  a  criterion  of  limited  moral  respon- 
sibility. Such  a  criterion  exists  in  most  of  the 
systems  of  penal  legislation  of  the  world  and  its 
result  we  see  every  day  in  the  acquittal  of  the  more 
dangerous  kinds  of  criminals  or  in  the  diminution 
of  their  punishment  because  an  absence  or  a  weak- 
ening of  moral  responsibility  has  been  proved  in 
their  cases,  while  the  criminals  in  whom  moral 
responsibility  remains  intact  are  most  severely  s 
8  113 


CRIMINAL    PROCEDURE 

punished  notwithstanding  the  fact  that  they  are  fre- 
quently less  dangerous  criminals.  Some  of  these 
theories  of  limited  moral  responsibility  will  be  dis- 
cussed when  formulating  a  positive  criterion  of 
penal  responsibility. 

The  preceding  considerations,  showing  the  theo- 
retic uncertainty  and  practical  uselessness  of  moral 
liberty  as  a  basis  for  criminal  treatment,  prove  the 
necessity  for  a  criterion  of  penal  responsibility  in- 
dependent of  moral  guilt.  This  is,  in  reaKty,  noth- 
ing new.  As  we  have  already  seen,  primitive  penal 
legislation  was  independent  of  any  moral  idea. 
Even  the  Roman  law  in  its  earlier  phases  treated  a 
crime  merely  as  an  illegal  act  without  any  sugges- 
tion of  moral  fault  on  the  part  of  its  author.1  And 
to-day  certain  crimes  in  which  no  moral  respon- 
sibility is  involved  such  as  involuntary  homicide 
and  wounding  are  punished.  Sometimes  when  the 
absence  of  moral  responsibility  has  been  proved,  as 
in  the  case  of  criminal  aliens,  punishment  is  still  in- 
flicted. So  that  to  treat  all  circumstances  inde- 
pendent of  moral  responsibility  is  by  no  means 
without  precedent  and  would  only  be  an  extension 
of  the  present  tendency  in  that  direction.  This 
reform  would  bring  about  the  same  change  in  the 
treatment  of  and  attitude  towards  criminals  that 
has  taken  place  with  regard  to  the  insane.  It  is 
not  much  more  than  a  century  since  the  insane,  with 
the  exception  of  violent  maniacs,  were  regarded  as 
morally  responsible  for  their  infirmity  and  as  such 

*  Ihering :  Das  Schuldmoment  im  romischen  Recht, 
Giessen,  1876. 

114 


SOCIETY  AND   THE   CRIMINAL 

were  treated  with  hatred,  scorn  and  abuse.  No 
one  to-day  holds  the  insane  person  as  responsible 
for  his  character  but  the  insane  are  no  less  subjected  / 
to  restraint  and  special  treatment,  for  the  protec-  ^\ 
tion  of  society.  The  criminal  will  come  to  be 
treated  in  the  same  manner  though  with  no  slack- 
ening in  the  social  measures  taken  against  him. 
Even  to-day  we  sometimes  hear  in  conversation  or 
in  the  journals,  especially  with  regard  to  unusual 
crimes,  the  suggestion  that  the  criminal  is  a  phe- 
nomenon of  individual  and  social  pathology. 

Having  rejected  moral  guilt  as  a  cause  for  pun- 
ishment what  other  sanction  is  there  for  penal 
treatment  ?  This  question  we  have  already  answered 
in  tracing  the  natural  evolution  of  the  function  of 
social  defense.  We  have  seen  that  the  original 
prototype  of  this  function  was  the  sensitiveness  or 
irritability  of  the  lowest  forms  or  organic  matter 
responding  with  simple  reactions  to  external  in- 
fluences. This  capacity  to  react  developed  in  com- 
plexity until  in  the  higher  species  of  animals  it 
became  conscious  reaction  by  one  animal  against 
another  animal  of  its  own  or  of  another  species.  In 
the  human  species  starting  from  this  form  of  in- 
dividual reaction  the  present  highly  organized 
mechanism  for  regulating  these  reactions  between 
individuals  was  developed.  So  it  is  that  when  an 
individual  is  punished  for  an  injury  he  has  done  to 
others  he  is  experiencing  a  reaction  of  a  social 
order.  In  like  manner  when  he  becomes  sick  he  is 
experiencing  a  reaction  of  a  biological  order  for 
injuries  he  has  done  or  which  have  been  done  to 
"5 


CRIMINAL    PROCEDURE 

his  physiological  system.  Thus  the  sanction  for 
punishment  is  the  same  as  the  sanction  for  the  re- 
action which  comes  from  the  violation  of  any  na- 
tural law  or  order  of  phenomena. 

We  can,  therefore,  say  that  a  criminal  is  respon- 
sible for  his  crimes  because  he  lives  in  society  and 
adopt  this  as  the  basis  for  our  theory  of  penal  re- 
ponsibility.  In  adopting  this  social  basis  for  our 
theory  of  responsibility  we  are  in  harmony  with  the 
modern  science  of  ethics.  Up  to  this  point  we 
have  been  using  the  term  "moral"  in  the  meta- 
physical ideal  sense  which  it  has  had  in  the  past 
and  in  which  sense  it  is  still  recognized  in  the 
existing  theory  of  penal  responsibility.  But  the 
exponents  of  the  modern  science  of  ethics  have 
abandoned  this  metaphysical  conception  of  moral- 
ity and  now  regard  it  merely  as  a  phenomenon 
arising  out  of  social  relations.  Rights  and  duties 
for  them  result  from  these  relations  and  do  not 
exist  in  the  abstract  outside  of  them.  According 
to  these  ideas  the  criminal  is  immoral  because  he 
has  violated  rights  and  failed  to  perform  his  duties. 
From  this  point  of  view  our  theory  of  penal  respon- 
sibility is  a  moral  as  well  as  a  social  one.  But  in- 
asmuch as  the  term  "moral"  is  still  used  in  its 
former  metaphysical  sense  it  is  better  not  to  use  it 
in  the  present  connection,  in  order  to  avoid  mis- 
understanding. 

Having  adopted  this  social  basis  for  our  theory 

of  penal  responsibility  the  first  step  towards  fixing 

this  responsibility  is  to  prove  the  imputability  to 

an  individual  of  a  crime.    As  defined  by  Romagnosi, 

116 


SOCIETY   AND   THE    CRIMINAL 

one  of  the  older  Italian  jurists  of  the  classical 
school,  imputability  is  the  possibility  of  "attributing 
a  determined  effect  to  some  one  as  to  the  cause  by 
which  this  effect  is  produced."  The  simplest  and 
most  apparent  form  of  imputability  is  the  physical 
imputability  of  a  person  who  has  committed  a 
physical  and  muscular  act.  But  this  is  not  suffi- 
cient to  fix  penal  responsibility.  This  act  must  have 
been  the  last  phase  of  a  physio-psychic  process, 
all  of  which  has  been  physically  free,  without  any 
regard  to  its  moral  freedom.  When,  therefore, 
a  person  commits  an  act  under  constraint  from 
another,  whether  with  or  without  a  knowledge  of 
the  character  of  that  act,  he  becomes  only  an  in- 
strument and  the  act  cannot  be  imputed  to  him  in 
the  penal  sense  of  that  word.  The  servant  who 
commits  an  act  under  the  orders  of  his  master  can- 
not have  that  act  imputed  to  him  either  when  he  is 
ignorant  of  the  character  of  the  act  or  even  when 
he  knows  its  character  but  is  not  in  a  position  to 
disobey  his  master.  Physical  imputability  alone 
is  not  sufficient  to  fix  penal  responsibility  for  an 
act  but  it  must  be  physically  free  and  connected 
with  a  physio-psychic  process  which  has  led  the 
individual  up  to  the  act.  Furthermore,  though 
physical  imputability  forms  a  part  of  the  basis  for 
fixing  responsibility  in  most  cases,  it  is  not  a 
necessary  part  of  that  basis  as  in  the  case  where 
the  real  author  of  a  crime  has  used  another  as  an 
instrument  for  its  physical  accomplishment.  To 
determine,  therefore,  imputability,  it  is  necessary 
to  prove  this  relation  of  cause  and  effect,  as 
117 


CRIMINAL    PROCEDURE 

indicated  in  Romagnosi's  definition,  between  the  in- 
dividual and  the  act  committed.  This  imputability 
may  be  termed  material  imputability  as  distinguished 
on  the  one  hand  from  physical  imputability  and  on 
the  other  hand  from  moral  imputability.  And 
when  the  act  committed  is  a  crime  this  material 
imputability  implies  a  social  and  legal  imputability 
which  according  to  our  definition  is  equivalent  to 
penal  responsbility. 

Having  determined  the  method  of  fixing  penal 
responsibility  it  may  seem  that  there  is  nothing 
more  to  be  said  about  responsibility.  This  would 
be  true  if  our  theory  was  based  on  the  moral  respon- 
sibility of  the  individual.  In  its  original  form  this 
theory  made  responsibility  equal  for  all.  But  absurd 
as  it  may  seem  to  attempt  to  measure  so  metaphys- 
ical a  thing  as  moral  responsibility  this  is  exactly 
what  came  to  be  done,  so  that  we  find  it  being 
estimated  at  a  fourth,  a  third,  a  half,  etc.1  In  one 
sense  the  responsibility  is  the  same  for  all,  accord- 
ing to  our  theory  also,  since  all  are  members  of 
society.  But  the  social  basis  of  our  theory  is  more 
complex,  introducing  several  elements  in  accordance 
with  which  the  sanction  for  punishment  may  vary. 
These  are  the  individual,  the  crime,  and  the  society 
in  which  he  lives.  Of  these  three  the  one  which 
is  the  most  important  factor  in  measuring  respon- 
sibility is  the  criminal.  The  most  important  func- 
tion of  the  crime  is  as  an  indication  of  physio- 
psychic  personality.  Thus  the  responsibility  of 

1  Cf.  Mario  Pagano :  Principii  del  codice  penale. 
118 


SOCIETY   AND   THE    CRIMINAL 

the  criminal  according  to  our  theory  is  of  great 
value  as  evidence. 

The  society  in  which  a  criminal  lives  expresses 
its  character  in  the  penal  code  which  changes  as 
social  conditions  change  and  this  element  of  the 
sanction  for  punishment  is  derived  from  it.  Ac- 
cording to  the  law  of  evidence,  which  will  be  dis- 
cussed in  a  later  chapter,,  it  is  determined  whether 
a  criminal  act  has  been  committed  and  its  imput- 
ability  to  a  certain  individual.  It  remains  to  in- 
dicate what  part  the  criminal  plays  in  determining 
the  extent  and  kind  of  sanction  for  punishment. 
In  the  preceding  chapter  we  have  reviewed  the 
biological  stigmata  of  the  criminal.  In  later 
chapters  will  be  indicated  how  these  stigmata  can 
be  determined  and  put  at  the  service  of  justice  in 
the  course  of  procedure.  What  elements  in  the 
character  and  personality  revealed  by  these  stig- 
mata are  of  importance  for  determining  this  sanc- 
tion, which  is,  in  other  words,  penal  responsibility  in 
its  practical  applications?  In  one  sense  the  whole 
character  and  personality  are  of  importance.  But 
certain  characteristics  are  of  peculiar  significance 
and  may  be  used  as  a  criterion  for  measuring  the 
responsibility  of  the  criminal. 

When  moral  liberty  began  to  be  discredited  as 
a  basis  for  penal  responsibility,  attempts  were  made 
to  base  responsibility  on  various  other  elements  in 
the  personality.  We  have  already  chosen  the  basis 
for  our  theory  of  penal  responsibility  and  it  would 
be  easy  to  show  the  insufficiency  of  any  one  of 
these  other  bases.  But  nearly  every  one  of  them 
119 


CRIMINAL    PROCEDURE 

contributes  something  towards  a  complete  criterion 
of  responsibility.  When  it  was  pecognized  that  free 
will  no  longer  gave  a  stable  basis  for  responsibility 
it  was  thought  that  it  could  be  based  on  the  other 
great  section  of  the  mind,  the  intellect.  When  put 
into  practise  this  theory  breaks  down.  It  soon  be- 
comes evident  that  in  many  cases  on  account  of  in- 
sanity or  some  other  pathological  characteristic  the 
intellect  may  be  limited  and  yet  the  necessity  for 
social  defense,  and  therefore  of  penal  responsi- 
bility, may  be  very  great.  In  fact,  according  to  this 
theory,  as  a  rule  the  responsibility  diminishes  just 
to  the  extent  that  the  need  for  it  as  a  basis  for  social 
defense  increases.  The  realization  of  this  fact  has 
led  to  the  introduction  in  most  penal  legislations 
of  treatment,  under  some  other  name  than  penal 
treatment,  for  the  insane  and  other  abnormal  per- 
sons. But  the  classification  is  not  yet  complete 
and  not  until  this  theory  is  abandoned  can  the  in- 
tellect gain  its  true  significance  in  the  treatment  of 
criminals.  As  one  of  the  elements  in  the  criterion 
of  responsibility,  the  intellect  is  of  great  impor- 
tance. In  general  it  may  be  said  that  a  certain  de- 
gree of  intelligence  is  necessary  to  fit  an  individual 
for  social  life.  He  should  be  sufficiently  intelli- 
gent to  understand  his  relations  towards  others  and 
the  ordinary  consequences  of  his  acts.  But  this 
is  not  the  only  condition  for  adaptability  for  social 
life.  Sometimes  when  the  intelligence  is  sufficient 
the  volition  is  too  weak  or  too  impulsive  and  leads 
the  individual  into  crime.  In  such  cases  the  theory 
of  responsibility  based  on  the  intellect  may  work 
120 


SOCIETY  AND  THE  CRIMINAL 

out  successfully  in  practise  because  the  intellect 
furnishes  the  basis  for  responsibility  which  will 
permit  of  the  necessary  penal  treatment.  But  it 
does  not  succeed  so  well  in  all  cases.  Youth  is 
usually  recognized  as  a  cause  for  irresponsibility. 
When  the  absence  of  intelligence  in  a  child  is  the 
result  of  the  normal  physiological  condition  of  an 
undeveloped  intellect  there  may  be  good  reason  for 
irresponsibility.  But  if  this  lack  of  intelligence  is 
a  pathological  condition  the  necessity  for  social 
defense  may  be  very  great.  So  in  the  case  of 
drunkenness,  which  is  frequently  a  cause  for  irre- 
sponsibility, if  it  is  a  temporary  condition  with  no 
pathological  basis  its  irresponsibility  may  be  justi- 
fied. But  if  it  is  an  indication  of  a  grave  patho- 
logical state,  as  is  frequently  the  case,  social  defense 
may  require  very  strict  measures.  These  examples 
show  that  the  mere  fact  of  the  presence  or  absence 
of  intelligence  is  not  in  itself  a  criterion  of  respon- 
sibility but  that  its  significance  depends  in  each 
case  upon  its  cause  and  its  relations  to  other 
characteristics. 

Another  element  in  the  personality  which  has 
been  chosen  as  a  basis  for  responsibility  is  the 
volition.  This  basis  has  been  adopted  in  a  number 
of  penal  codes.  But  this  also  is  not  a  sufficient  cri- 
terion of  responsibility.  The  mere  fact  that  an  in- 
dividual wished  to  commit  a  certain  act  does  not 
indicate  what  his  intention  was  in  committing 
it.  Other  faculties  than  that  of  volition  must  be 
taken  into  consideration.  An  individual  with  a 
very  healthy  volition  may  commit  crime  through 
121 


CRIMINAL    PROCEDURE 

ignorance  or  under  very  exceptional  circumstances. 
Here  again  in  using  volition  to  measure  responsi- 
bility it  must  be  taken  in  its  relation  with  other 
faculties. 

Our  theory  of  responsibility,  the'refore,  bases 
responsibility  first,  upon  the  conditions  of  society 
as  reflected  in  the  penal  code,  second,  upon  the 
commission  of  a  crime  and  its  material  imputation 
to  an  individual,  and  third,  upon  the  character  of 
this  individual  as  completely  as  it  can  be  determined. 
And  this  theory  shows  how  careful  the  positive 
theory  of  social  defense  is  to  recognize  both  social 
and  individual  rights.  According  to  this  theory 
society  has  the  sanction  to  defend  itself  against 
any  acts  or  persons  who  endanger  its  welfare  while 
by  abolishing  vengeance  and  moral  retribution  as 
motives  for  criminal  treatment  and  by  carefully 
studying  the  criminal  himself,  his  rights  as  an  indi- 
vidual are  abridged  only  to  the  extent  that  social 
welfare  demands. 

Criminal  procedure  may  be  termed  the  practise 
of  social  defense.  It  is,  however,  but  one  of  the 
measures  of  social  defense  and  is  continuous  with 
the  others.  The  first  and  in  the  long  run  the  most 
effective  measures  against  crime  are  those  pre- 
ventive measures  which  aim  to  suppress  the  causes 
of  crime.  Whether,  however,  these  indirect 
methods  of  fighting  crime  are,  strictly  speaking, 
measures  of  social  defense,  may  be  questioned. 
Both  these  methods  and  the  direct  methods  of 
fighting  crime  have  the  same  object  and  study  the 
same  phenomena.  But  the  first  deal  with  social 
122 


SOCIETY   AND   THE   CRIMINAL 

masses  and  conditions  while  the  second  deal  with  in- 
dividuals, and  individual  acts,  so  that  the  methods 
used  must  differ.  The  relation  between  the  two  is 
similar  to  the  relation  between  hygienic  prophylaxy 
and  therapeutics.  So  that  while  for  purposes  of 
convenience  we  do  not  class  preventive  measures 
under  the  heading  of  social  defense  we  must  not 
forget  the  continuity  of  these  measures  with  those 
of  social  defense. 

A  second  series  of  measures  which  also  do  not, 
strictly  speaking,  come  under  the  heading  of  social 
defense  but  are  continuous  with  the  measures  of 
social  defense  because  they  have  the  same  funda- 
mental object,  is  the  series  of  reparatory  measures 
administered  by  the  civil  law.  In  the  primitive 
phases  of  the  evolution  of  law,  civil  law  and  penal 
law  were  one,  and  during  one  period  all  penalties 
were  reparatory.  In  course  of  time  a  distinction^ 
arose  between  the  two  based  on  a  distinction  be* 
tween  the  motives  and  characters  involved  and  also 
on  the  exigencies  of  society.  Some  legal  writers 
still  recognize  the  connection  between  them,  as  for 
example,  one  writer  who  after  distinguishing  public 
wrongs  or  crimes  from  private  wrongs  or  torts, 
says,  "there  is  a  sense  in  which  all  wrongs  are  pub- 
lic wrongs  since  they  involve  an  interruption  of 
the  duties  of  the  subject  to  the  state,  or  interfere 
with  that  protection  which  the  state  owes  to  the 
subject."1  But  the  tendency  among  jurists  has 
been  to  separate  absolutely  the  two.  The  princi- 
pal reason  for  this  separation  has  probably  been 

1W.  C.  Robinson:  Elementary  Law,  Boston,   1882,  p.  239. 
123 


CRIMINAL    PROCEDURE 

the  idea  that  moral  guilt  is  present  in  a  crime  but 
not  in  a  tort.  This,  however,  is  no  reason  for  such 
a  separation  since  according  to  our  theory  moral 
guilt,  in  the  metaphysical  sense,  is  not  a  necessary 
element  of  crime.  That  there  is  a  close  connection 
between  civil  and  penal  law  is  shown  by  the  fact 
that  when  civil  law  is  prompt  and  just  in  its  opera- 
tion there  is  less  need  of  recurring  to  penal  justice. 
This  is  indicated  by  the  fact  that  civil  law  was  very 
highly  developed  among  the  Romans,  while  penal 
law  was  relatively  less  developed.  Statistics  show 
that  when  civil  justice  is  slow  and  costly,  crimes  of 
violence  increase.1 

So  that  civil  justice  tends  to  suppress  some  of 
the  causes  of  crime  and  is  therefore  much  like  the 
preventive  measures  against  crime,  but  differs  from 
them  like  penal  justice  in  not  coming  into  opera- 
tion until  an  injury  has  been  caused.  The  agita- 
tion now  going  on  in  favor  of  replacing  short 
imprisonments  for  misdemeanors  with  damages  is 
tending  to  bring  civil  and  penal  justice  nearer  to- 
gether and  make  more  apparent  the  continuity  be- 
tween the  two.  This  tendency  might  be  emphasized. 
Unpremeditated  offenses  and  certain  premeditated 
offenses  of  a  special  sort,  such  as  adultery  and 
dueling,  might  be  treated  with  reparatory  and  not 
penal  measures.2 

Lastly  come  the  measures  of  social  defense  which 
may  be  divided  into  repressive  and  eliminative 

1  De  Candolle :  Sur  la  statistlque  des  delits,  in  the  Biblio- 
theque  universelle  de   Geneve,   1830.     Zincone:  Del  aumento 
dei  reati,  Caserte,  1872. 

2  Ferri :  Op.  cit.  p.  465. 

124 


SOCIETY   AND   THE   CRIMINAL 

measures.  The  repressive  measures  are  of  a  tem- 
porary sort  to  prevent  recidivation  in  criminals 
who  are  not  very  dangerous.  The  eliminative 
measures  are  those  which  remove  permanently  from 
society  those  who  have  proved  themselves  to  be  a 
continual  danger  to  society.  The  measures  now 
in  use  are  death,  detention  for  life  in  a  prison, 
agricultural  colony  or  asylum  for  insane  criminals, 
and  transportation  for  life.  Repressive  and  elim- 
inative measures  are  put  into  effect  by  means  of 
criminal  procedure  and  the  penal  administration. 
Up  to  the  present  time  procedure  has  had  the  func- 
tion of  selecting  those  who  are  to  undergo  these 
measures  and  the  nature  and  extent  of  the  punish- 
ment. But  the  tendency  now  is,  as  will  be  shown 
later  on,  to  let  the  penal  administration  co-operate 
with  the  procedure  in  determining  the  extent  and 
even  sometimes  the  nature  of  the  punishment.  The 
penal  administration  has  the  function  of  inflicting 
the  punishment  but  procedure  may  in  the  future 
have  some  influence  in  determining  the  character 
of  the  administration.  By  means  of  this  interac- 
tion and  co-operation  between  these  two  parts  of 
the  system  of  social  defense  the  continuity  which 
exists  between  them  will  be  established  in  practise. 
Elimination  and  repression  are  the  social  forms 
of  natural  selection  and  adaptation.  Just  as  in  the 
biological  organism  that  which  is  entirely  or  almost 
entirely  injurious  is  selected  out  and  rejected,  so 
from  the  social  organism  are  eliminated  the  mem- 
bers that  are  most  dangerous  and  least  adapted 
to  social  life.  Just  as  in  the  biological  organism 
125 


CRIMINAL    PROCEDURE 

an  object  has  to  be  adapted  to  its  surroundings,  so 
in  the  social  organism  many  individuals  must  be 
adapted  to  their  social  surroundings.  This  process 
of  selection  and  adaptation  has  been  carried  on 
throughout  history  but  heretofore  in  a  more  or  less 
crude  and  empirical  manner.  The  reaction  against 
criminals  has  been  more  or  less  unconscious  and 
as  we  have  seen,  other  elements  such  as  religion  have 
entered  into  this  process.  The  result  has  been  a 
great  deal  of  waste.  Much  blood  has  been  spilt 
and  many  lives  lost  without  any  social  gain.  But 
men  are  now  coming  to  see  the  true  function  of 
this  social  reaction  and  to  determine  what  are  the 
methods  with  which  to  put  it  into  effect  with  the 
least  possible  waste.  As  we  have  seen,  the  forces 
that  cause  crime  are  natural  forces.  We  have  re- 
jected free  will,  which  cannot  be  measured  and 
determined,  as  a  cause  of  crime.  To  prevent  and 
repress  crime  other  natural  forces  must  be  em- 
ployed. 

In  criminal  procedure  the  criminal  is  dealt  with 
directly.  It  is,  therefore,  necessary  to  employ 
upon  him  the  forces  which  will  check  his  criminal 
tendencies.  But  to  determine  what  these  forces 
are  it  is  necessary  first  to  know  the  character  of 
the  criminal.  In  the  previous  chapter  we  have  re- 
viewed the  inductions  of  criminal  anthropology 
showing  to  what  extent  the  peculiar  characteristics 
of  the  criminal  have  been  determined.  It  is  there- 
fore a  question  of  applying  these  inductions  in 
practise  to  every  individual  criminal.  That  this  is 
perfectly  possible  we  have  every  reason  to  believe. 
126 


SOCIETY   AND   THE   CRIMINAL 

As  Ferri  says,  "when  a  criminal  is  examined  di- 
rectly with  sufficient  knowledge  of  anthropology 
and  of  criminal  psychology,  it  is  always  possible 
to  class  him.  It  is  easy  sometimes  for  the  most 
pronounced  types,  and  easy  sometimes  even  ac- 
cording to  only  a  few  symptomatic  details  of  their 
attitude  before,  during  and  after  the  crime  without 
a  direct  and  personal  examination  being  neces- 
sary; sometimes  it  is  difficult  as  when  these  inter- 
mediary types  are  involved  of  which  it  is  necessary 
to  make  a  complete  diagnostical  examination,  in 
their  organic,  psychic  and  social  characteristics."1 
At. the  Congress  of  Criminal  Anthropology  held 
at  Paris  in  1889,  Garofalo  read  a  report  on  the  fol- 
lowing question:  "When  a  person  has  been  proved 
guilty  can  the  class  of  criminals  to  which  he  be- 
longs be  established  by  criminal  anthropology?"2 
He  said  that  the  anthropological  characteristics  can 
serve  as  indices  of  the  psychic  anomaly.  Some- 
times the  kind  of  the  crime  alone  can  determine 
the  class  of  the  criminal  especially  in  crimes  of 
great  cruelty  which  reveal  an  absence  of  the  senti- 
ment of  pity.  It  then  becomes  necessary  to  dis- 
tinguish between  the  born  murderer,  the  morally 
insane  criminal,  the  insane  criminal  and  the  epilep- 
tic. In  other  cases  a  psychological  and  anthropo- 
logical examination  is  necessary.  The  judge  must 
take  into  consideration  the  kind  and  frequency  of 
crimes  in  the  record  of  the  criminal,  his  psychological 

1  E.  Ferri:  Op.  cit.  p.  173. 

2  Archives    de    I' anthropologie    criminelle    et    des   sciences 
penales,  1889. 

127 


CRIMINAL    PROCEDURE 

and  anthropological  characteristics  and  vicious,  in- 
sane or  criminal  heredity.  This  examination  will 
reveal  the  impulsive  characteristics,  that  is,  lack 
of  resistance  to  impulsions  of  anger  or  to  nervous 
excitation  resulting  from  alcoholism  or  from  an 
alcoholic,  convulsionary,  insane  or  epileptic  hered- 
ity. The  anthropological  characteristics  are  of 
greatest  significance  in  the  young  criminals.  Gar- 
ofalo  continued  by  saying  that  he  considered 
psychology  more  important  than  anthropology  in 
classifying  criminals  against  property  since  the 
feeling  of  probity  is  less  instinctive  than  that  of 
pity,  is  less  dependent  on  the  organism  and  on 
heredity  and  is  influenced  more  by  external  causes. 
Special  classes  of  criminals  to  be  noted  are  klep- 
tomaniacs, physical  and  moral  neurasthenics  (those 
disliking  work  and  moral  conflict)  resulting  from 
a  nervous  constitution  and  a  taste  for  pleasure, 
and  criminals  of  habit  of  whom  the  young  may  be 
reformed. 

This  summary  of  Garofalo's  report  indicates  the 
practical  utility  of  the  classification  of  criminals. 
Having  determined  the  class  of  a  criminal  it  will 
be  possible  to  prescribe  treatment  according  to  his 
peculiar  needs,  as  will  be  discussed  in  the  next 
chapter.  This  will  be  very  different  from  the  old 
system  according  to  which  the  crime  was  and  is 
still  to  a  large  extent  the  only  standard  of  punish- 
ment. According  to  this  system  the  crime  was 
punished  in  the  criminal  while  according  to  our 
system  the  criminal  will  be  judged  and  punished 
in  his  crime.  The  function  of  criminal  procedure 
128 


SOCIETY  AND  THE  CRIMINAL 

should,  therefore,  be  to  serve  as  a  mechanism  for 
"the  appropriation  of  defensive  measures  to  anthro- 
pological categories  of  criminals,"1  or  to  put  it  still 
more  precisely,  to  adjust  penal  treatment  to  the  in- 
dividual criminal. 

Criminal  sociology  also  will  help  in  adjusting 
the  punishment  to  the  individual.  In  the  cases 
where  there  is  little  or  no  anthropological  abnor- 
mality it  will  reveal  the  social  causes  of  crime  and 
will  indicate  the  remedy.  By  gathering  statistics 
of  recidivation  it  will  show  the  success  of  the 
various  kinds  of  penalties  thus  acting  as  a  criti- 
cism and  check  on  procedure. 

When,  therefore,  criminal  procedure  is  based 
on  criminal  anthropology  and  sociology,  crime  will 
no  longer  be  treated  merely  as  a  juridical  phenom- 
enon but  primarily  as  an  anthropological  and  social 
phenomenon.  Its  juridical  character  will  then  be 
determined  by  its  anthropological  and  social  char- 
acter. Procedure  will  no  longer  be  purely  empir- 
ical or  governed  by  criteria  which  are  more  or  less 
independent  of  the  character  of  the  criminal  but 
will  be  governed  by  strictly  scientific  criteria.  This 
does  not  mean  that  absolute  exactitude  can  be 
attained  in  every  case.  The  limitations  of  the  ap- 
plications of  science  to  procedure  exist  in  the 
complexity  of  the  phenomena  involved.  Since  the 
different  types  of  criminals  shade  into  each  other  it 
is  not  possible  to  tell  exactly  to  which  type  an  in- 
dividual criminal  belongs.  Many  criminal  charac- 
teristics are  identical  with  those  of  other  diseases 

1E.  Ferri:  Op.  cit.  p.  574. 
9  129 


CRIMINAL    PROCEDURE 

making  the  diagnosis  of  cases  very  difficult.  But 
even  with  these  limitations,  through  science  we 
shall  reach  much  more  satisfactory  results  than  are 
reached  by  existing  methods. 

It  is  noticeable  that  this  positive  method  greatly 
increases  the  importance  of  procedure.  Not  only 
will  it  have  as  heretofore  to  determine  the  com- 
mission and  the  nature  of  a  crime  but  also  the 
character  of  the  criminal.  And  as  procedure  in- 
creases in  importance  the  penal  code  will  lessen  in 
importance.  The  code  will  always  designate  what 
acts  are  criminal  but  under  a  positive  scientific 
regime  it  will  determine  only  to  a  limited  extent 
the  penalties  since  these  will  be  determined  usually 
by  the  nature  of  the  criminal.  This  is  in  accordance 
with  the  fundamental  character  of  these  two  parts 
of  the  penal  system.  It  may  be  said  that  procedure 
was  made  for  honest  persons  while  the  code  was 
made  for  criminals.  In  other  words  the  procedure 
in  addition  to  being  an  effective  means  of  dealing 
with  criminals  must  also  deal  with  such  honest 
people  as  become  involved  in  it.  It  must  safeguard 
the  interests  of  these  honest  persons  and  make  it 
practically  impossible  for  one  of  them  to  be  con- 
victed. The  penal  code  on  the  other  hand  deals 
exclusively  with  those  who  have  been  found  guilty 
and  are  presumably  criminals.  Its  task  is  much 
simpler  than  that  of  procedure  and  only  one  special 
class  is  directly  interested  in  it.  But  procedure  is 
of  interest  and  of  importance  to  every  member  of 
society,  for  anyone  is  likely  to  become  involved  in 
|  its  machinery.  A  positive  procedure  must  retain 

130 


SOCIETY   AND   THE    CRIMINAL 

every  guarantee  of  individual  liberty  above  all  for 
the  honest  person  but  also  for  the  criminal  so  that 
the  restrictions  placed  upon  him  shall  not  exceed 
those  demanded  by  social  defense.  But  it  must 
also  be  an  effective  instrument  of  social  defense. 
It  should  therefore  not  be  hampered  and  almost 
crippled  in  the  name  of  individual  liberty  by  a  sys- 
tem of  determinate  sentences  designated  by  the 
penal  code  which  makes  impossible  the  individual- 
ization  of  punishment.  If  the  procedure  effectively 
guarantees  the  liberty  of  the  honest  person,  the 
indetermination  of  punishment  is  no  menace  to  it. 
But  even  to  the  liberty  of  the  criminal  this  inde- 
termination is  no  danger.  By  means  of  it  the 
more  deserving  of  the  criminals  will  suffer  much 
less  punishment  than  under  a  system  of  determinate 
penalties  while  it  will  fall  on  the  dangerous  crim- 
inals alone  with  a  weight  which  social  defense  will 
justify. 

The  problem  before  us,  therefore,  is  that  of  out- 
lining a  system  of  procedure  which  will  maintain 
to  the  highest  possible  degree  this  delicate  balance 
between  society  and  the  criminal,  on  the  one  hand 
by  safeguarding  individual  liberty  with  every  pos- 
sible guarantee  and  on  the  other  hand  by  furnishing 
with  the  aid  of  science  an  effective  social  defense 
against  crime. 

Before  closing  this  chapter  it  is  necessary  to  dis- 
cuss one  other  matter  which  is  connected  with  this 
relation  between  society  and  the  criminal.  When 
the  classical  school  rebelled  in  the  eighteenth  cen- 
tury against  the  then  existing  system  in  which 
131 


CRIMINAL    PROCEDURE 

punishment  was  frequently  inflicted  in  a  spirit  of 
vengeance  or  with  the  idea  that  divine  justice  was 
being  administered,  it  designated  as  one  of  the  ob- 
jects of  punishment  its  deterrent  influence  on 
crime.  As  Beccaria  expressed  it,  "the  object  of 
punishment  is  only  to  prevent  the  criminal  from 
continuing  to  injure  society  and  to  turn  his  fellow 
citizens  from  attempting  similar  crimes."1  This 
theory  has  become  more  and  more  prominent  in 
recent  years  while  the  idea  that  punishment  is  a 
retribution  for  moral  guilt  has  grown  feebler.  The 
theory  is  sometimes  illustrated  by  the  story  of  the 
English  judge  who,  when  a  horse  thief  whom  he 
had  sentenced  to  be  hanged  remonstrated,  replied, 
"I  hang  you  not  for  stealing  a  horse,  but  that  horses 
may  not  be  stolen."  This  illustration  indicates  that 
individuals  are  sometimes  punished  more  severely 
than  their  individual  cases  demand  in  the  interest 
of  society.  This  has  not  seemed  moral  to  many 
and  has  shocked  their  sense  of  justice.  From  our 
point  of  view  of  the  defense  of  society,  this  would 
be  justifiable  if  social  welfare  really  demanded  it. 
But  this  would  have  to  be  clearly  proved,  other- 
wise this  severe  treatment  would  be  a  grave  en- 
croachment on  individual  rights.  It  is,  therefore, 
necessary  to  consider  carefully  the  deterrent  influ- 
ence of  punishment  on  crime. 

There  is  no  doubt  that,  as  Garofalo  says,  "penal 
repression  furnishes  motives  to  conduct  in  exciting 
and  in  sustaining  the  sentiment  of  duty,"2  Because 

1  C.  Beccaria :  Traite  des  delits  et  peines,  Ch.  XII. 
a  R.  Garofalo :  La  criminologie,  p.  263. 
132 


SOCIETY  AND  THE  CRIMINAL 

an  act  is  stigmatized  by  the  law  as  criminal  and 
because  the  results  from  committing  it  are  inju- 
rious, its  immoral  character  is  emphasized  and  it 
becomes  repulsive  and  objectionable  to  us.  This 
does  not  mean  that  its  immoral  character  was  not 
recognized  before  it  became  a  crime.  On  the  con- 
trary few  acts  are  made  crimes  until  they  have  first 
been  recognized  as  immoral  by  the  public  con- 
science. But  their  criminal  character  tends  to  re- 
act on  their  character  as  immoral  by  emphasizing 
it.  "Assuredly  the  legislator  has  not  the  power  to 
give  the  character  of  infamy  to  an  action  that  pub- 
lic opinion  considers  as  indifferent  or  honorable. 
He  cannot  act  in  a  sense  entirely  opposed  to  public 
morality,  but  he  can  very  well  aid  its  development, 
revive  it,  prevent  it  from  becoming  feebler  or  be- 
coming extinct."1  Thus  by  raising  the  general 
standard  of  morality  penal  repression  has  in  an  in- 
direct manner  a  deterrent  influence  upon  crime. 

But  the  kind  of  deterrent  influence  usually  meant 
is  where  an  individual  is  directly  restrained  from 
a  crime  by  fear  of  a  specific  punishment.  This  has 
been  formulated  in  the  theory  of  psychological 
coaction  whose  principal  exponents  have  been  the 
German  legal  writer  Feuerbach  and  the  Italian 
jurist  Romagnosi.  This  theory  is  stated  in  the  fol- 
lowing rule:  "In  order  that  the  ill  with  which  one 
is  menaced  on  account  of  a  crime  should  become 
a  determining  motive  of  conduct,  it  must  be  a 
little  superior  to  the  pleasure  that  one  hopes  to 
procure  by  means  of  the  criminal  act."  According 

1  R.  Garofalo :  Op.  cit.  pp.  265-266. 
133 


to  this  rule  a  penalty  should  be  fixed  for  each 
crime  whose  undesirable  consequences  would  a 
little  more  than  outweigh  the  pleasure  to  be  gained 
from  the  commission  of  the  crime.  This  idea  has 
had  a  great  deal  of  weight  in  the  formulating  of 
penal  codes.  But  the  question  may  be  raised  by 
what  criterion  it  is  possible  to  fix  this  point.  How 
can  it  be  determined  whether  five  years  or  ten  years 
is  enough  to  deter  people  from  a  certain  crime. 
As  no  scientific  criterion  exists,  the  fixation  of  these 
penalties  must  be  purely  empirical.  In  practise! 
both  extremes  have  been  attained.  Sometimes 
penalties  have  been  too  severe.  This  has  usually 
resulted  in  impunity  because  accusations  were  not 
made  or  judges  and  juries  shrank  from  inflicting 
the  penalty.  Sometimes  penalties  have  been  too 
light  thus  acting  as  a  very  slight  check  on  crime. 
But  the  rule  itself  may  be  attacked  for  several 
reasons.  In  the  first  place  it  displays  an  ignorance 
of  the  character  of  the  born  criminal.  We  have 
seen  in  the  previous  chapter  that  a  marked  char- 
acteristic of  this  criminal  is  his  lack  of  foresight. 
Consequently  he  will  not  usually  measure  the 
pleasure  the  commission  of  a  crime  will  give  to  him 
with  the  ill  he  would  suffer  from  its  punishment  in 
order  to  determine  if  it  is  worth  while  to  commit 
the  crime.  Furthermore  this  theory  ignores  the 
powerful  forces  in  the  organism  of  a  congenital 
criminal  which  lead  him  to  crime  regardless  of 
whether  or  not  he  is  conscious  of  the  consequences. 
So  that  it  is  very  evident  that  the  deterrent  influ- 
ence of  punishment  on  the  born  criminal  is  to  say 
i34 


SOCIETY   AND   THE   CRIMINAL 

the  least  very  limited.  In  the  second  place  the  evil 
is  a  somewhat  uncertain  one  since  there  is  a  pos- 
sibility of  escaping  the  penalty.  This  tends  to  les- 
sen its  deterrent  influence  for  every  one.  In  the 
third  place  an  evil  which  is  somewhat  distant  does 
not  always  serve  to  prevent  a  man  from  indulging 
in  an  immediate  pleasure  especially  if  the  desire 
for  it  is  violent  and  sudden.  These  reasons  indi- 
cate that  no  such  fixed  relation  exists  between  a 
crime  and  its  punishment  capable  of  being  embodied 
in  a  penal  code  of  determined  penalties.  On  the 
contrary  each  particular  case  must  be  studied  by 
itself  in  order  to  determine  what  amount  of  punish- 
ment will  have  the  most  deterrent  influence.  It  is 
therefore  as  necessary  to  adjust  the  punishment  to 
the  individual  criminal  with  a  view  to  intimidation 
as  it  is  for  other  reasons.  The  intimidability  of  the 
criminal  is  one  of  the  characteristics  which  must 
be  considered  in  individualizing  punishment. 

Like  others  of  the  characteristics  which  enter 
into  individualization  such  as  the  intelligence  and 
the  volition,  the  intimidability  has  been  made  the 
basis  for  a  theory  of  responsibility.  According  to 
this  theory  criminals  are  responsible  because  they 
are  intimidable — the  exceptions  being  the  insane. 
It  is  argued  that  the  born  criminal  and  other  ab- 
normal persons  who  become  criminals  are  no  ex- 
ceptions. On  the  contrary  the  intimidation  is  meant 
especially  for  them  in  order  to  furnish  them  with 
an  additional  motive  to  resist  their  criminal  tenden- 
cies. "Without  punishment,  that  is  to  say,  without 
intimidation,  the  perverse  individual  would  not  find 


CRIMINAL    PROCEDURE 

any  help  against  his  perversity  and  could  not  do 
otherwise  than  obey  it."1  To  reply  to  this  theory 
it  is  not  necessary  to  deny  that  punishment  has  a 
certain  amount  of  deterrent  influence.  On  the  con- 
trary, it  is  quite  in  accordance  with  our  positive 
theory  to  regard  punishment  as  one  of  the  means 
of  fighting  crime  by  furnishing  a  psychological  mo- 
tive to  desist  from  it.  But  this  is  but  one  of  the 
functions  of  punishment  and  therefore  intimidability 
cannot  be  the  whole  criterion  of  punishment. 
Furthermore,  as  Ferri  says,  "if  a  man  commits  an 
offense,  it  is  precisely  because  he  has  not  been  in- 
timidated and  because  in  the  precise  conditions  in 
which  he  was  when  committing  the  offense  he  could 
not  be  intimidated  by  the  penalty."2  The  logical 
deduction  from  this  would  be  that  the  only  respon- 
sible persons  are  those  who  have  not  committed  any 
crimes. 

However,  we  may  consider  intimidability  one  of 
the  characteristics  which  determine  responsibility 
and  therefore  punishment.  As  we  have  already 
seen  this  characteristic  is  especially  lacking  in  born 
criminals.  It  is  therefore  evident  that  if  they  are 
to  be  intimidated  at  all  it  is  only  by  severe  punish- 
ment. But  this  is  not  likely  to  happen  under  a 
system  of  fixed  penalties  because  these  are  usually 
only  moderately  severe  since  they  are  destined  to 
intimidate  all  kinds  of  criminals  and  also  because 
they  do  not  increase  in  severity  for  recidivists. 

1  Dubuisson :   Theorie  de  la  responsabilite  in  the  Archives 
d'anthropologie  criminelle,   1888. 
•  Op.  cit.  p.  426. 

136 


SOCIETY   AND    THE    CRIMINAL 

Such  a  code  of  fixed  penalties  is,  as  Von  Liszt  has 
said,  "a  veritable  Magna-Charta  of  criminals"  be- 
cause according  to  it  a  criminal  knows  just  what 
he  risks  when  he  commits  a  crime.  Much  more 
terrifying,  and  therefore  intimidating,  would  be  a 
system  of  individualization  such  as  will  be  described 
in  the  next  chapter,  in  which  the  criminal  would  be 
uncertain  as  to  his  fate  but  would  know  that  per- 
sistent criminality  is  likely  to  lead  to  the  extreme 
penalty.  On  the  other  hand,  there  are  the  crim- 
inals who  are  only  slightly  or  not  at  all  abnormal 
and  who  have  committed  crime  largely  through 
force  of  circumstances.  These  possess  the  largest 
amount  of  intimidability  and  therefore  a  system  of 
fixed  penalties  may  seem  well  suited  to  them.  But 
contrary  to  the  case  of  the  born  criminal  such  a 
system  tends  to  be  too  severe  for  these  criminals. 
A  smaller  amount  of  punishment  will  usually  suffice 
for  purposes  of  intimidation  while  the  excess  of 
punishment  is  likely  to  do  much  harm  to  the  crim- 
inal and  is  a  violation  of  individual  rights.  Ob- 
jects other  than  intimidation  must  be  considered 
such  as  the  reform  of  the  criminal  and  sometimes 
it  must  be  wholly  neglected  in  behalf  of  more  im- 
portant considerations. 

Intimidation  is  then  one  of  the  ends  of  punish- 
ment, but  its  importance  must  always  be  estimated 
in  its  relation  to  the  other  ends  of  punishment. 
There  are  certain  dangers  which  accompany  it. 
Intimidation  tends  to  an  increase  of  the  rigor  of 
punishment  both  in  length  of  imprisonment  and 
in  harshness  of  treatment,  so  that  it  helps  to 


CRIMINAL    PROCEDURE 

keep  alive  the  feeling  of  vengeance  as  a  motive  for 
punishment.  Furthermore  it  tends  to  distract  at- 
tention from  social  reforms  which  are  the  most 
effective  means  of  fighting  crime.  As  compared  to 
other  ends  of  punishment  it  is  not  as  important  as 
adaptation  and  selection  which  protect  society 
with  the  smallest  amount  of  loss.  So  that  it  is 
evident  that  the  principle  of  intimidation  must  be 
applied  to  punishment  with  great  care  in  order  that 
it  shall  not  interfere  but  will  co-operate  with  the 
other  ends  of  punishment  and  in  order  that  indi- 
vidual rights  shall  not  be  violated. 


138 


CHAPTER  IV 

THE  INDIVIDUALS ATION  OF  PUNISHMENT 

Several  times  in  the  preceding  pages  we  have 
mentioned  the  importance  of  adjusting  the  treat- 
ment of  the  criminal  to  his  character  rather  than  to 
his  crime.  The  tendency  towards  this  method  of 
adjustment  has  come  to  be  known  as  the  individ- 
ualisation  of  punishment.1  On  account  of  the 
great  importance  for  procedure  of  this  tendency 
and  of  the  principle  of  individualization  we  will 
now  discuss  quite  fully  this  principle  and  the  ways 
in  which  it  has  already  been  applied. 

A  number  of  recent  modifications  in  criminal 
procedure  manifest  this  tendency.  In  America 
has  originated  the  indeterminate  sentence  by  means 
of  which  the  duration  of  punishment  of  criminals 
guilty  of  the  same  crime  may  vary  greatly  accord- 
ing to  their  record  in  prison.  The  system  of  fixed 
penalties  still  obtains  everywhere  in  Europe,  but 
the  expedient  of  extenuating  circumstances  has 
been  introduced  to  temper  the  rigidity  of  this  sys- 
tem. In  America  also  originated  suspension  of 
sentence  with  probation  or  parole,  which  has  been 

1R.  Saleilles:  L'individualisatlon  de  la  peine,  Paris,  1898. 
Wahlberg :     Das     Princip      der     Individualisirung     in     der 
Strafrechtspfiege,   Vienna,    1869. 
139 


CRIMINAL    PROCEDURE 

copied  in  England  under  the  name  of  conditional 
release  and  in  France  under  the  name  of  condam- 
nation  conditionnelle  or  sursis  and  which  now 
exists  in  many  other  countries.  But  before  dis- 
cussing in  detail  these  and  other  modifications  it 
will  be  necessary  to  trace  briefly  the  history  of  the 
individualization  of  punishment  and  then  to  analyze 
its  principles. 

As  we  have  already  seen,  before  the  French 
Revolution  the  fixation  of  the  penalties  was  left  to 
the  arbitrary  power  of  the  judges.  As  a  writer  of 
that  time,  Muyart  de  Vouglans,  has  expressed  it : 
"It  is  a  general  maxim  among  us  that  penalties  are 
arbitrary  in  this  kingdom ;  not  indeed  that  the  judge 
has  the  liberty  to  condemn  or  to  absolve  at-his  will, 
but  he  must  regulate  his  judgment  according  to  the 
demands  of  each  case,  that  is  to  say,  to  lessen  or  to 
increase  the  penalties  according  to  the  nature  of 
the  crime  and  of  the  penalties."1  Here  we  see  a 
kind  of  individualization  but  one  which  was  based 
principally  upon  the  material  facts  of  the  crime  in 
each  case  and  not  on  the  subjective  nature  of  the 
criminal.  "The  judge  had  full  power  to  adapt 
the  penalty  to  the  gravity,  not  legal,  but  real,  of 
the  crime;  and  as  for  the  fixation  of  the  penalty, 
he  was  never  bound  by  the  law.  He  could  regulate 
the  penalty  according  to  each  fact,  and  in  propor- 
tion with  the  gravity  of  each  crime  taken  by  itself."2 
However,  since  there  were  no  laws  regulating  the 
fixation  of  the  penalties,  the  judge  could  have 

1  Institutes  du  droit  criminel,  I,  4. 
2R.  Saleilles:  Op.  cit.  p.  45. 
140 


INDIVIDUALIZATION  OF  PUNISHMENT 

determined  them  by  the  subjective  standard  of  the 
character  of  the  criminal.  "If  he  was  practising 
in  general  objective  individualization,  it  was  be- 
cause the  other  did  not  respond  to  the  ideas  of  the 
time  and  was  scarcely  surmised.  Otherwise,  noth- 
ing in  the  law  would  have  prevented  the  judge 
of  the  old  regime  from  anticipating  Lombroso  and 
applying  in  advance  all  the  theories  of  the  Italian 
School."1  But  instead  the  judge  applied  the  pen- 
alty according  to  the  crime  and  sometimes  with 
the  utmost  rigor,  regardless  of  the  character  of  the 
criminal. 

It  was  a  time  when  people  were  hung  for  very 
slight  offenses  and  it  was  this  arbitrary  rigor  that 
called  forth  the  protest  from  the  eighteenth  century 
philosophers.  The  ideas  of  these  philosophers 
formed  the  basis  of  the  French  penal  code  which 
was  formulated  soon  after  the  Revolution.  This 
code  went  to  the  other  extreme  and  fixed  a  penalty 
for  each  crime,  leaving  to  the  judge  no  opportunity 
for  individualization  of  any  sort.  But  with  this 
code  was  introduced  the  jury  and  the  jury  was 
able  to  introduce  some  individualization  into  the 
procedure,  notwithstanding  the  code.  The  code 
applied  the  punishment  to  each  crime  with  mathe- 
matical regularity,  without  any  consideration  for 
the  individual.  But  the  jury  saw  before  it  a  man 
whose  fate  was  in  its  hands.  It  learned  some- 
thing about  the  life  and  character  of  this  man 
and  of  the  circumstances  under  which  he  com- 
mitted his  crime.  With  these  facts  in  mind  it  could 

1  Saleilles :  Op.  cit.  p.  46. 

141 


CRIMINAL    PROCEDURE 

not  ignore  the  penalty  which  would  inevitably  be 
inflicted  if  its  verdict  was  unfavorable.  The  result 
was  that  in  many  cases  it  lost  sight  of  the  crime 
and  saw  only  the  man  whom  it  acquitted  in  order 
to  save  him  from  the  penalty.  This  was  individual- 
ization,  but  of  a  very  unscientific  and  frequently 
anti-social  sort.  It  displayed  a  humanitarian  in- 
stinct but  was  sentimental  and  ill-regulated  in  its 
application.  However,  it  contained  the  germ  of 
this  principle  of  considering  the  individual  more 
important  than  his  act  in  determining  his  penalty. 
The  first  attempt  made  to  remove  the  evil  results 
from  this  kind  of  individualization  was  in  1824 
when  a  law  was  passed  permitting  the  admission 
of  extenuating  circumstances  in  the  case  of  certain 
crimes.  These  crimes  were  the  ones  in  which  the 
jury  had  given  the  largest  number  of  acquittals, 
many  of  them  having  been  very  scandalous.  But 
the  power  of  admitting  these  extenuating  circum- 
stances was  given  to  the  judge.  Consequently  the 
jury  could  never  be  certain  that  they  would  be  ad- 
mitted and,  as  it  frequently  mistrusted  the  judge, 
the  acquittals  continued.  As  a  result  in  1832  the 
power  of  admitting  extenuating  circumstances  was 
given  to  the  jury. 

This  is  the  kind  of  individualization  made  by  the 
jury  by  means  of  the  expedient  of  extenuating  cir- 
cumstances in  France  and  in  most  of  the  European 
countries.  It  is,  however,  very  faulty,  because  it 
is  almost  entirely  empirical  in  character,  being 
based  on  a  very  slight  knowledge  of  the  individual, 
142 


INDIVIDUALIZATION  OF  PUNISHMENT 

and  because  it  is  frequently  determined  by  feelings 
of  passion  or  of  sentiment. 

In  America,  from  the  very  first,  the  idea  of  re- 
forming the  criminal  has  been  very  prominent.  It 
resulted  in  the  earlier  part  of  the  nineteenth  century 
in  experiments  in  the  construction  and  administra- 
tion of  penitentiaries  which  attracted  the  attention 
of  Europe.  Later  the  indeterminate  sentence,  sus- 
pension of  sentence,  etc.,  were  introduced.  These 
changes  were  stimulated  principally  by  private 
initiative  and  have  been  put  into  effect  largely  by 
private  agencies.  They  have  been  inspired  by 
humanitarian  and  philanthropic  ideas  which  have 
led  to  works  of  social  reform.  These  ideas  have 
also  frequently  been  inspired  with  a  religious  zeal 
for  the  moral  regeneration  and  religious  conver- 
sion of  criminals.  In  this  respect  this  sort  of  indi- 
vidualization  is  like  that  of  the  canonical  law  of 
the  middle  and  dark  ages  as  practised  in  the  ec-i 
clesiastical  courts.  The  judges  of  these  courts  be-; 
lieved  that  justice  is  in  the  hands  of  God  and  they 
had  not  the  objective  aim  of  adjusting  the  punish- 
ment to  the  crime  committed,  but  the  subjective 
aim  of  working  for  the  regeneration  of  the  crim- 
inal. The  general  tendency  of  these  American  re- 
forms has  been  towards  leniency.  Rarely,  if  ever, 
has  greater  severity  of  treatment  been  advocated. 
Since  emphasis  has  been  laid  principally  on  the 
criminal  himself,  these  reforms  have  been  develop- 
ing a  sort  of  individualization.  But  it  has  not  been 
inspired  by  scientific  ideas,  consequently  it  has  not 
been  governed  by  science.  Since  little  or  no  study 
143 


r 


has  been  made  of  the  criminal  it  has  been  almost 
if  not  quite  as  empirical  as  the  individualization 
made  by  the  jury  by  means  of  extenuating  circum- 
stances. The  aim  of  social  defense  against  crime 
has  been  very  vaguely  conceived  and  therefore  has 
had  little  practical  influence,  as  shown  by  the  al- 
most universal  tendency  towards  leniency. 

It  is  evident  that  different  sorts  of  individualiza- 
tion are  being  practised  from  different  points  of 
view.  As  a  matter  of  fact  most,  if  not  all,  the 
schools  of  to-day  advocate  individualization,  though 
for  varying  reasons.  As  we  have  seen  the  new 
scientific  school  advocates  it  on  account  of  the 
anthropological  characteristics  of  the  criminal  and 
for  the  sake  of  social  defense.  Various  schools 
advocate  it  for  the  reform  of  the  criminal.  Even 
the  classical  school  has  broken  down  the  rigidity 
of  its  doctrine  by  admitting  extenuating  circum- 
stances and  a  considerable  number  of  cases  of 
diminished  responsibility.  On  account  of  the 
variety  of  reasons  offered  for  individualization  it 
will  be  necessary  to  study  its  principles  in  the  light 
of  the  two  previous  chapters  in  order  to  have  a 
satisfactory  basis  for  a  practical  system  of  indi- 
vidualization. 

As  the  word  indicates,  individualization  is  the 
process  of  adjusting  a  penalty  to  the  character  of 
a  criminal.  Three  kinds  of  individualization  have 
been  distinguished,  legal,  judicial,  and  adminis- 
trative.1 Strictly  speaking,  there  is  no  such  thing 
as  legal  individualization.  The  legislator  does  not 

Op.  cit.  p.  15. 

144 


INDIVIDUALIZATION  OF  PUNISHMENT 

know  the  individual  for  whom  he  is  legislating  and 
therefore  cannot  apply  treatment  directly.  The 
term  has  been  applied  to  laws  which  furnish  a 
basis  for  individualization  of  other  sorts,  as  for 
example,  a  legal  classification  of  criminals  accord- 
ing to  their  types.  But  for  the  application  of  this 
law  to  the  individual  criminal  the  intervention  of 
another  agency  is  needed  so  that  it  is  best  to  drop 
this  term  entirely.  We  have  then,  two  forms  left, 
judicial  and  administrative.  The  first  is  the  one 
with  which  this  book  is  directly  concerned,  since 
it  is  the  one  exercised  by  criminal  procedure,  but 
the  second  is  closely  connected  with  it  and  the  two 
must  work  together  in  order  to  form  an  effective 
system  of  individualization. 

In  the  first  place,  it  is  necessary  to  diagnose  the 
character  of  the  criminal  and  then  to  prescribe 
the  appropriate  treatment.  This  must  be  done  by 
the  procedure  and  then  the  treatment  must  be  put 
into  effect  by  the  penal  administration.  But  the  diag- 
nosis and  prescription  made  by  the  procedure  can- 
not always  be  final  because  not  enough  is  yet 
known  about  the  criminal.  The  preliminary  and 
tentative  judicial  decision  must  therefore  be  re- 
adjusted in  the  course  of  the  treatment  in  accord- 
ance with  the  further  knowledge  acquired  concern- 
ing the  criminal.  Let  us  now  pass  in  review  the 
stages  of  this  process. 

First  of  all  is  needed  a  criterion  according  to 

which  the  character  of  the  criminal  is  to  be  judged 

in  the  course  of  the  procedure.     We  have  already 

rejected  the  criminal  act  as  being  an  uncertain  and 

10  145 


CRIMINAL    PROCEDURE 

.insufficient  indication.  The  motive  of  the  act  next 
\  presents  itself.  This  criterion  is  far  superior  to 
\that  of  the  act,  since  it  is  subjective  in  its  char- 
lacter.  It  has  formed  the  basis  for  the  theory  of 
parallel  or  dishonoring  and  non-dishonoring  pen- 
alties.1 These  penalties  are  to  be  applied  accord- 
ing to  the  motive  of  the  criminal,  the  first  series 
when  the  motive  is  dishonorable  and  discreditable, 
the  second  when  the  motive  is  creditable  or,  to  say 
the  least,  not  dishonorable.  In  the  second  class 
may  be  included  political  offenses,  certain  crimes 
of  passion,  the  duel,  certain  crimes  against  sexual 
morality  as  in  cases  of  rape  when  a  girl  has  given 
herself  voluntarily  to  her  ravisher.  Sometimes 
even  theft  and  murder  are  committed  with  an 
honorable  motive,  while  outrages  committed  during 
strikes  and  political  uprising  are  not  always  dis- 
creditable. As  non-dishonoring  penalties,  deten- 
tion in  a  section  of  the  prison  separate  from  the 
other  prisoners  and  under  somewhat  better  con- 
ditions, exile,  fines,  etc.,  have  been  suggested.  The 
usual  forms  of  punishment  would  then  become 
the  dishonoring  penalties.  On  account  of  their 
distinction  from  the  other  penalties  they  would  be 
rendered  all  the  more  infamous.  This  character 
they  are  now  losing  because  they  are  so  frequently 
applied  to  crimes  which  the  public  conscience  does 
not  regard  as  infamous. 

This    is    the   theory    of    the    parallel    series    of 

1  Cf.  E.  Garcon :  Les  peines  non  deshonorantes,  Revue 
penitentiaire,  1896,  p.  830.  C.  Rigaud :  De  ['influence  du  motif. 
Paris,  1898. 

146 


INDIVIDUALIZATION  OF  PUNISHMENT 

penalties  which  would  individualize  punishment  in 
accordance  with  the  motive  of  the  crime.  It  is  true 
that  in  the  case  of  some  crimes  of  the  most  heinous/v^ 

-\. 


sort  the  motive  is  adequate  evidence  of  the 
acter  of  the  criminal.  But  most  cases  are  not  so  easy 
to  solve.  In  the  first  place  there  is  the  great  prac- 
tical difficulty  of  determining  what  is  the  motive. 
This  being  in  itself  a  very  intangible  thing  and  not/ 
always  being  revealed  by  the  circumstantial  evi- 
dence, it  frequently  remains  in  great  uncertainty.' 
Furthermore  an  individual  not  at  all  criminal  in 
character  may  at  times  commit  a  crime  with  a  very 
bad  motive.  On  the  other  hand,  a  person  of  a 
criminal  character  may  commit  a  crime  with  a 
good  motive,  but  the  crime  may  be  one  which  could 
be  committed  only  by  an  individual  of  such  a  char- 
acter so  that  in  such  a  case  the  act  might  in  reality 
be  a  better  indication  of  character  than  the  motive. 
The  motive  like  the  act  itself  reveals  usually  only 
a  small  part  of  the  personality  during  a  limited 
period  of  time.  It  is  an  indication  of  character 
and  may  serve  as  a  presumption  on  which  to  base 
further  investigation,  but  is  not  a  broad  enough 
basis  on  which  to  decide  the  treatment  to  be  pre- 
scribed. 

Let  us  put  ourselves  at  the  point  of  view  of  the 
principle  of  social  defense  which  has  been  described 
in  the  preceding  chapter.  From  this  point  of  view 
the  sanction  for  punishment  is  the  dangerousness 
of  the  criminal  for  society.  The  criterion  of  judg- 
ment is  threefold,  including  the  crime,  social  con- 
ditions and  the  criminal.  In  developing  a  criterion 


CRIMINAL    PROCEDURE 

of  responsibility  we  have  seen  that  the  whole  per- 
sonality must  be  taken  into  account,  including  the 
intellect,  volition,  intimidability,  etc.  The  same  is 
true  of  individualization.  No  more  than  the 
responsibility  can  it  be  based  on  a  single  element 
of  the  personality  as  is  done  in  the  theory  of  the 
parallel  penalties  where  the  motive  reveals  only  one 
element  of  the  personality,  the  volition.  We  must, 
therefore,  consider  by  what  means  a  knowledge  of 
this  personality  can  be  secured. 

There  is  first  of  all  the  criminal  act  and  its  mo- 
tive as  far  as  that  motive  can  be  ascertained.  Then 
there  is  the  life  history  of  the  criminal,  revealing 
his  previous  criminal  record,  if  he  has  any,  his 
education,  his  vocation,  his  manner  of  life,  etc. 
Lastly  there  is  all  that  may  be  learned  by  means  of 
a  physiological  and  psychological  examination. 
And  here  the  data  and  inductions  of  criminal  an- 
thropology already  reviewed  in  the  second  chapter 
become  of  great  practical  value.  We  have  seen 
that  there  is  still  much  difference  of  opinion  with 
regard  to  many  questions  in  this  science  and  that 
a  satisfactory  synthesis  as  to  the  origin  and  nature 
of  the  criminal  has  not  yet  been  reached.  But  this 
does  not  vitiate  the  practical  value  of  what  has  al- 
ready been  attained.  The  complexity  which  has 
been  introduced  into  the  theory  by  the  discovery 
of  numerous  physiological  causes  furnishes  a  still 
broader  basis  for  individualization  of  treatment. 
The  fact  that  a  criminal  is  a  neurasthenic  or  a  born 
criminal,  an  epileptic  or  a  moral  imbecile,  is  an  im- 
portant indication  of  the  kind  of  treatment  needed. 
148 


INDIVIDUALIZATION  OF  PUNISHMENT 

As  in  medical  science  the  therapeutics  of  a  disease 
is  frequently  known  before  its  etiology  has  been 
traced,  so  the  right  kind  of  treatment  for  a  crim- 
inological  type  may  be  known  before  its  origin  or 
exact  character  has  been  determined.  And  as  in 
medicine  the  theurapeutic  practise  may  lead  to  the 
discovery  of  the  origin  and  exact  character  of  a 
disease,  so  in  criminology  it  is  probable  that  only 
by  means  of  the  practical  utilization  of  what  is 
already  known  can  a  satisfactory  theory  be  attained. 
Having  gathered  this  information  about  the  per- 
sonality of  the  criminal,  in  what  way  is  it  to  be  used 
in  determining  his  treatment?  His  criminality  may 
be  looked  at  from  several  points  of  view,  from  that 
of  its  origin,  of  its  type,  and  of  its  intensity.1  From 
no  one  of  these  points  of  view  alone  can  the  treat- 
ment be  determined,  but  all  must  be  taken  into  con- 
sideration before  a  satisfactory  decision  can  be 
reached.  The  origin  of  the  criminality  is  a  very 
important  piece  of  evidence,  when  it  can  be  de- 
termined, and  must  influence  greatly  the  treatment. 
The  fact  as  to  whether  the  criminality  is  congenital 
or  acquired,  whether  it  is  nervous  or  anatomical  in 
its  origin,  may  cause  great  changes  in  the  treatment 
needed.  At  the  same  time  two  forms  of  criminality 
with  very  different  origins  sometimes  require  the 
same  kind  of  treatment,  as  for  example,  when  it  is 
a  question  of  total  elimination  the  same  kind  of  elim- 
ination will  serve  for  criminalities  having  very  dif- 
ferent origins.  In  the  second  place  the  type  of 
criminality  or  the  kind  of  crime  in  which  it  results 

1Saleilles;  Op.  tit.  p.  250. 

149 


CRIMINAL    PROCEDURE 

must  be  considered.  Garofalo  has  prepared  a 
"rational  system  of  penalties,"1  in  which  the  crim- 
inals are  classified  according  to  their  types  of  crim- 
inality, with  appropriate  penalties  for  each  type. 
But  such  a  system  is  not  certain  to  be  accurate, 
because  two  criminals  having  the  same  type  of  crim- 
inality may  have  very  different  origins  and  there- 
fore require  different  treatment.  On  the  other 
hand  criminals  of  the  same  origin  may  commit  dif- 
ferent kinds  of  crime  and  yet  require  the  same  kind 
of  treatment  on  account  of  their  similar  origin.  In 
the  third  place  the  intensity  of  the  criminality  must 
be  taken  into  account,  whether  it  is  very  profound 
and  therefore  incorrigible,  or  superficial  and  tem- 
porary and  therefore  reformable.  These  three 
points  of  view  are  by  no  means  independent  of 
each  other,  but  on  the  contrary  overlap  each  other 
more  or  less.  It  is  true  that  criminalities  of  the 
same  origin  or  of  the  same  type  usually  need  the 
same  kind  of  treatment  and  to  a  less  degree  that  is 
also  true  of  criminalities  of  the  same  intensity. 
But  all  three  must  be  taken  into  consideration  be- 
fore an  accurate  prescription  of  treatment  can  be 
made. 

But  there  is  a  practical  limit  to  the  extent  to 
which  individualization  of  punishment  can  be  car- 
ried. For  financial  reasons  if  for  no  other,  it 
would  be  impossible  to  prescribe  special  treatment 
for  each  of  the  many  thousands  who  are  constantly 
passing  through  the  courts,  while  such  specializa- 
tion would  as  a  rule  have  no  utility.  It  is,  there- 

1  La  criminologie ,  Paris,  1905. 
ISO 


INDIVIDUALIZATION  OF  PUNISHMENT 

fore,  necessary  to  establish  a  classification  more  or 
less  detailed,  based  upon  the  three  points  of  view 
designated  above.  The  individualization  would 
then  consist  in  determining  the  class  of  each  crim- 
inal. It  is  not  possible  to  outline  here  such  a  classi-  J 
fication  and  it  is  furthermore  a  penological  problem,' 
while  here  we  are  concerned  with  procedure,  the 
machinery  which  is  to  utilize  it.  Such  a  classi- 
fication should  be  developed  out  of  the  experience 
of  the  courts  and  of  the  penal  administration,  an 
experience  tested  and  controlled  by  statistics  of 
recidivation  and  of  the  amount  of  crime.  How- 
ever, in  the  latter  part  of  this  chapter  recent  modi- 
fications will  be  discussed  which  will  suggest  in 
part  a  system  of  individualization. 

Such  are  the  fundamental  principles  on  which 
can  be  based  a  practical  system  of  individualiza- 
tion. It  is  hardly  necessary  to  state  after  the  dis- 
cussion in  the  last  chapter  that  such  a  system  is  and 
must  be  entirely  independent  of  moral  responsibility. 
In  general  it  may  be  said  that  in  such  a  system  the 
length  of  separation  would  depend  on  the  readapt- 
ability  to  society.  But  there  are  certain  objections 
to  individualization  which  indicate  further  limita- 
tions. 

The  principal  objection  is  that  individualization      / 
results  in  an  inequality  of  punishment   for  equal    \ 
crimes.     This  seems  like  an  injustice  to  many.    As 
Tarde  has  said :  "The  misfortune  is  that  to  individ- 
ualize punishment  is  to  make  it  unequal  for  equal 
faults,  and  it  is  well  to  take  into  account  the  feeling 
of   apparent   injustice   that  this   inequality   cannot 
151 


CRIMINAL    PROCEDURE 

fail  to  make  the  condemned  or  a  large  number  of 
them  and  even  the  ignorant  mass  of  the  public  ex- 
perience."1 As  we  have  already  seen,  from  the 
point  of  view  of  social  defense  justice  does  not  re- 
quire that  the  same  crimes  shall  always  receive  the 
same  punishment..  Justice  both  to  society  and  to 
the  individual  frequently  requires  that  the  punish- 
ment shall  vary  greatly  in  cases  where  the  crime 
has  been  exactly  the  same.  So  that  the  injustice 

-*•**"  mentioned  above  is  only  apparent.  However,  if 
there  is  danger  of  many  persons  regarding  indi- 

I  vidualization  as  unjust,  measures  should  be  taken 
to  prevent  this,  since  it  would  result  in  discrediting 
all  criminal  justice.  It  is  possible  that  criminals 
do  sometimes  feel  that  they  are  being  treated  un- 
justly when  others  who  are  guilty  of  the  same 
crime  receive  a  lighter  punishment.  This  would 
be  obviated  in  part  by  the  merit  system,  which 
should  be  included  in  every  system  of  individualiza- 
tion.  A  criminal  should  be  made  to  feel  that  the 
severity  and  duration  of  his  punishment  depends 
largely  upon  himself  and  that  others  get  off  with 
less  punishment  because  they  have  earned  it.  But 
it  would  also  be  well  probably  if  on  the  occasion 
of  every  sentence  the  judge  would  state  publicly 
the  reasons  for  the  sentence,  thus  showing  its 
justice,  both  to  the  criminals  and  to  the  public. 
The  public  might  thus,  in  course  of  time,  be  edu- 
cated up  to  the  point  of  appreciating  the  justice  of 
individualizing  punishment. 

1  Introduction     to     L'individualisation     de     la     peine     of 
Saleilles. 


INDIVIDUALIZATION  OF  PUNISHMENT 

But  it  must  not  be  forgotten  that,  as  has  been 
stated  above,  the  criterion  of  judgment  is  threefold, 
including  the  crime  and  social  conditions  as  well  as 
the  criminal.  To  forget  these  two  other  elements 
and  to  individualize  with  only  the  criminal  in  mind 
would  be  to  ignore  the  object  of  social  defense. 
In  the  preceding  pages  we  have  spoken  a  number 
of  times  of  the  prescription  of  treatment  to  crim- 
inals. This  phrase  reminds  us  of  the  medical  treat- 
ment of  the  sick.  And  it  is  on  account  of  the 
analogy  between  medical  treatment  and  the  indivi- 
dualization  of  punishment  that  the  phrase  has  been 
used.  But  the  analogy  is  not  complete  because  in 
treating  the  sick  there  is  usually  only  the  individual 
to  be  considered,  while  in  treating  criminals  there 
are  social  interests  also  to  be  considered.  The 
analogy  becomes  nearly  if  not  quite  complete  when 
the  disease  is  contagious  or  is  insanity,  when 
temporary  and  sometimes  permanent  isolation  is 
required.  We  must,  therefore,  consider  what  influ- 
ence social  conditions  have  upon  the  fixation  of 
punishment. 

There  undoubtedly  exists  in  the  public  feeling 
a  desire  to  punish  certain  crimes  with  certain  de- 
grees of  severity.  Whether  this  desire  arises  out 
of  a  feeling  of  vengeance  or  that  expiation  is  nec- 
essary or  from  any  other  source  we  need  not  dis- 
cuss here.  It  has  been  suggested  above  that  the  \ 
public  may  be  educated  up  to  the  point  of  accepting 
the  individualization  of  punishment  without  de- 
manding punishment  for  the  crime.  But  it  is  some- 
times contended  that  this  demand  has  a  social  utility. 


CRIMINAL    PROCEDURE 

Durkheim,  speaking  of  punishment,  says:  "It  does 
not  serve  or  serves  only  very  secondarily  to  re- 
claim the  guilty  one  or  to  intimidate  possible 
imitators  of  him;  from  this  double  point  of  view, 
its  efficacy  is  very  doubtful  and,  at  any  rate,  slight. 
Its  true  function  :s  to  maintain  intact  social  co- 
hesion by  maintaining  in  all  its  vitality  the  common 
conscience.  Denied  so  categorically,  this  would 
necessarily  lose  some  of  its  power  if  an  emotional 
reaction  from  the  community  did  not  come  to  com- 
pensate this  loss,  and  there  would  result  from  it  a 
loosening  of  social  solidarity.  This  should,  there- 
fore, affirm  itself  emphatically  at  the  moment  when 
it  is  contradicted,  and  the  only  way  of  affirming 
itself  is  by  expressing  the  unanimous  aversion  that 
the  crime  continues  to  inspire  by  an  act  which  can 
consist  only  in  a  pain  inflicted  upon  the  agent. . . . 
This  is  why  it  is  right  to  say  that  the  criminal  must 
suffer  in  proportion  to  his  crime,  why  the  theories 
which  refuse  to  punishment  all  expiatory  character 
appear  to  so  many  minds  subversive  of  the  social 
order."1 

It  would  seem  that  there  must  be  some  way  of 
indicating  the  relative  gravity  of  crimes  by  estab- 
lishing a  scale  of  crimes,  according  to  their  enor- 
mity. This  may  be  done  in  the  penal  code.  But  a 
mere  statement  of  this  scale  would  not  have  much 
practical  effect.  It  must  be  emphasized  in  some 
tangible  manner  which  will  strike  the  mind  and 
attention  of  the  public.  We  cannot,  however,  go 

*De  la  division  du  travail  social;  ad  edition,  Paris, 
1902,  pp.  76-77. 

154 


INDIVIDUALIZATION  OF  PUNISHMENT 

back  to  fixed  penalties.     The  case  for  individual- 
ization  is  too  strong  and  it  is  evident  that  from  now 
on  punishment  must  be  to  a  large  extent  individual- 
ized.    Is  there  not,  however,  one  respect  in  which 
the  punishment  can  be  adjusted  to  the  crime  in 
order    to    stigmatize   it   according   to    its   gravity? 
When  we  review  the  penalties  which  are  in  use 
to-day  we  find  that  many  different  kinds  have  been 
introduced  in  recent  years  and  that  there  is  quite  a 
variety  of  penalties  which  lend  themselves  to  the 
individualization  of  punishment.    But  limits  are  still   >^ 
fixed  to  the  duration  of  punishment  and  it  is  in  the      \ 
duration  and  not  in  the  kind  of  punishment  that  we 
may  be  able  to  establish  a  gradation  according  to 
the  crime.     This  does  not  mean  that  the  duration/ 
must  be  absolutely  fixed.     This  would,  in  fact,  be 
fatal  to  individualization.    But  it  is  possible  to  fix""1      ., 
for  each  crime  a  maximum  or  a  minimum  or  both  i^s,. 
with  enough  distance  between  to  admit  of  individ- 
ualization. 

In  the  preceding  chapter  has  already  been  dis- 
cussed how  the  standard  of  public  morality  can  be 
raised  by  attaching  to  criminal  acts  penalties  which 
make  them  seem  more  odious  even  to  those  who 
have  no  thought  of  committing  them.  It  is  diffi- 
cult to  determine  to  what  extent  punishment  can 
do  this  and  to  what  extent  it  should  be  allowed  to 
encroach  on  individualization.  The  means  sug- 
gested above  may  attain  this  end  without  putting 
too  great  a  check  upon  individualization.  This  is 
a  process  of  indirect  intimidation.  As  we  have 
seen  in  the  preceding  chapter  the  scope  of  direct 
155 


CRIMINAL    PROCEDURE 

intimidation  is  very  limited  and  it  can  frequently  be 
accomplished  with  individualization.  But  occasion- 
ally there  may  be  a  need  for  intimidation  outside 
of  individualization.  Saleilles  has  suggested  divid- 
ing penalties  into  those  of  surety  for  the  incor- 
rigible criminals  for  whom  there  is  no  hope  of 
reform,  those  of  reform  for  the  criminals  who  may 
be  reformed,  and  those  of  intimidation  for  those 
who  are  not  at  all  criminal  in  character  but  have 
been  led  into  crime  by  force  of  circumstances.1 
These  last  would  serve  only  as  a  warning  and  as 
an  indication  of  the  criminal  character  of  these 
acts.  They  would  correspond  to  the  non-dishon- 
oring penalties  discussed  above.  What  penalties 
are  best  fitted  for  this  purpose  we  cannot  discuss 
here,  since  it  is  a  penological  question. 

Keeping  in  mind,  therefore,  such  limitations  as 
may  be  put  upon  individualization  by  the  necessity 
to  intimidate  and  to  stigmatize  publicly  certain  acts 
as  crimes,  let  us  consider  the  means  by  which 
punishment  is  now  being  individualized.  During 
the  past  century  legislation  has  introduced  a  con- 
siderable variety  of  prisons  such  as  asylums  for 
the  insane  and  inebriates,  reform  schools,  agri- 
cultural colonies,  etc.  But  these  come  under  the 
penal  administration  while  we  are  interested  in 
the  means  of  individualization  administered  by  the 
courts. 

The  most  important  of  these  is  the  so-called  in- 
determinate sentence.  This  sentence  has,  so  far 
as  the  author  knows,  never  been  put  into  effect 

*O/>.  dt.  p.  240. 

156 


INDIVIDUALIZATION  OF  PUNISHMENT 

according  to  the  strict  sense  of  the  term.  That  is 
to  say,  a  law  providing  for  a  sentence  entirely  in- 
determinate has  never  been  enacted.  But  many 
laws  have  been  passed  providing  for  indefinite  or 
partially  indeterminate  sentences,  which  are  usu- 
ally called  indeterminate  sentences.  The  first  of 
these  was  passed  in  the  state  of  New  York,  April 
24,  1877,  and  provided  for  the  release  on  parole 
of  prisoners  from  Elmira  Reformatory  before  the 
end  of  their  term  of  imprisonment.  The  indeter- 
minate sentence  is  absolutely  necessary  for  any  re- 
formatory system.  This  had  already  been  insisted 
upon  by  Z.  R.  Brockway  (the  first  superintendent 
of  Elmira  Reformatory,  and  the  man  who  in  large 
part  made  it  what  it  now  is),  at  the  first  National 
Prison  Congress,  at  Cincinnati  in  October,  1870. 
In  a  report  upon  a  true  prison  reform  system  he 
had  said:  "Sentences  should  be  indeterminate;  all 
persons  convicted  of  crimes  to  be  committed  to 
custody  until  they  may  be  returned  to  society  with 
ordinary  safety."  Similar  laws  have  since  been 
passed  in  various  other  states  for  reformatories. 
The  principle  has  also  been  extended  to  sentences 
to  other  kinds  of  prisons  so  that  sentences  to  pen- 
itentiaries are  frequently  not  fixed  but  vary  be- 
tween a  minimum  and  maximum. 

One  of  the  principal  characteristics  of  the  in- 
determinate sentence  is  the  appeal  it  makes  to  the 
criminal's  self-interest.  As  Mr.  Brockway  has 
expressed  it,  "the  supreme  appeal  to  the  prisoner's 
self-interest  is  made  through  the  so-called  inde- 
terminate sentence,  under  which  he  may  himself 
i57 


CRIMINAL    PROCEDURE 

shorten  or  lengthen  the  period  of  his  imprison- 
ment."1 In  the  reformatories  the  release  is  de- 
termined principally  by  the  progress  the  prisoner 
makes  in  learning  a  trade,  and  in  his  school  work. 
In  the  penitentiaries  the  release  is  principally  de- 
termined by  the  conduct  of  the  prisoner,  a  record 
of  which  is  kept  by  marks  and  a  system  of  grad- 
ing. It  is  questionable  whether  this  last  is  a  good 
criterion  of  the  fitness  of  the  criminal  to  be  liber- 
ated. The  worst  of  criminals  frequently  have  the 
conduct  in  prisons.  The  criterion  for  liber- 
ation should  rather  be  the  character  of  the  crim- 
inal and  the  reformatory  system  is  much  more 
likely  to  judge  this  aright.  However,  these  are 
penological  questions  and  we  are  now  interested  in 
the  indeterminate  sentence  in  its  relation  to  pro- 
cedure. 

The  system  of  fixed  penalties  determines  the  du- 
ration of  punishment  before  anything  is  known 
about  the  criminal  so  that  individualization  in  the 
duration  of  punishment  is  made  entirely  impos- 
sible. Under  the  old  regime  in  Europe  the  judges 
had  absolute  power  over  the  duration  of  punish- 
ment. Here  was  the  opportunity  for  individual- 
ization by  the  judge.  But  even  with  the  most 
thorough-going  examination  of  the  prisoner  the 
judge  cannot  have  the  knowledge  of  the  criminal 
which  comes  only  from  an  observation  of  him 
through  a  long  period  of  time.  It  is  the  indeter- 
minate sentence  which  makes  it  possible  to  base  the 

1  In  the  Reformatory  System  in  the  United  States,  edited 
by  S.  J.   Barrows,  Washington,   1900. 
153 


INDIVIDUALIZATION  OF  PUNISHMENT 

decision  of  the  duration  upon  this  knowledge. 
The  information  secured  in  the  course  of  the  period 
of  imprisonment  is  gathered  by  the  prison  manage- 
ment. But  should  the  decision  with  regard  to  the 
release  be  made  by  this  management?  In  the  case 
of  most,  if  not  all  of  the  reformatories,  this  deci- 
sion is  made  by  a  board  composed  in  part  or  entire- 
ly of  members  outside  of  the  prison  management. 
It  has  also  been  suggested  that  this  power  should  * 
be  given  to  the  judges  who  would  exercise  it  by 
means  of  the  periodical  revision  of  sentences.  In 
this  latter  case  the  power  of  determining  the  dura- 
tion of  sentences  would  be  a  part  of  the  procedure 
and  therefore  requires  a  discussion  in  this  book. 
But  inasmuch  as  other  questions  concerning  pro- 
cedure will  have  to  be  decided  before  this  matter 
can  be  thoroughly  discussed,  its  discussion  will 
have  to  be  postponed  to  the  latter  part  of  this  book. 
In  passing,  however,  we  may  note  that  by  thus 
placing  this  power  outside  of  the  prison  adminis- 
tration a  check  is  put  upon  its  work,  thus  answering 
the  criticism  made  by  Tarde,1  that  the  indeterminate 
sentence  would  put  too  much  power  in  the  hands 
of  the  prison  keeper. 

Another  recent  modification  which  tends  towards 
the  individualization  of  punishment  is  the  suspen- 
sion of  sentence  by  means  of  which  a  criminal  is 
released  from  all  punishment  on  condition  of  good 
behavior  in  the  future.  Like  the  indeterminate 
sentence,  this  reform  also  originated  in  America. 
It  was  first  introduced  for  juveniles  under  the 

1 Revue  penitentiaire,  Paris,  1893. 
159 


CRIMINAL    PROCEDURE 

name  of  probation  in  Massachusetts  in  1869,  and 
for  adults  in  Boston  in  1878.  Since  that  time  it 
has  been  introduced  in  many  other  states.  In  Eng- 
land the  "Probation  of  First  Offenders  Act"  was 
passed  August  8,  1887.  It  is  also  known  as  con- 
ditional release  in  England  which  is  a  rather  mis- 
leading name  since  it  may  be  confused  with  the 
conditional  liberation  of  criminals  who  have  served 
a  term  of  imprisonment.  It  was  first  introduced 
on  the  continent  in  Belgium  by  the  Le  Jeune  law 
passed  May  31,  1888,  and  was  introduced  into 
France  by  means  of  the  Berenger  law  passed 
March  26,  1891,  where  it  is  known  under  the  name 
of  condamnation  conditionelle  or  sursis.  It  has 
since  been  introduced  into  various  other  European 
countries  such  as  Portugal,  Norway,  Luxemburg, 
etc.  Unlike  the  indeterminate  sentence  the  sus- 
pension of  sentence  is  administered  entirely  by 
procedure  and  therefore  merits  a  careful  consider- 
ation. 

Suspension  of  sentence  is  practised  under  several 
different  forms.  In  America  the  power  of  sus- 
pending sentence,  which  belonged  to  judges  under 
the  common  law,  has  been  made  very  extensive  so 
that  in  some  states,  as,  for  example,  in  New  York, 
a  judge  may  suspend  sentence  in  the  case  of  al- 
most every  crime,  no  matter  how  grave.  There 
are,  however,  various  precautions  taken  against 
the  abuse  of  this  privilege  by  the  criminals.  The 
sentence  is  suspended  only  on  condition  of  good 
conduct  during  the  rest  of  their  lives.  Thus  if 
the  judge  at  any  time  has  reason  to  believe  that  a 
160 


INDIVIDUALIZATION  OF  PUNISHMENT 

criminal  whose  sentence  has  been  suspended  is  not 
leading  an  honorable  and  useful  life,  he  can  sum- 
mon him  to  court  and  inflict  the  penalty  origin-ally 
suspended.  Also,  if  the  criminal  is  convicted  of 
another  crime,  the  original  penalty  can  be  inflicted 
in  addition  to  the  penalty  for  the  new  crime,  for 
which  he  is  treated  as  a  recidivist.  A  further  pre- 
caution is  the  work  of  the"  probation  officer  in 
whose  custody  the  criminal  is  usually  placed  and 
who  watches  over  him  for  a  certain  period  of  time 
after  his  release.  The  work  of  this  officer  will  be 
discussed  a  little  further  on. 

In  England,  no  surveillance  is  kept  over  the 
criminal  after  he  is  released  on  condition,  but  he  is 
forced  to  give  a  bond  for  good  conduct  which  acts 
as  a  restraint  upon  him.  A  similar  system  exists 
in  Massachusetts,  where  the  probation  officer  has 
to  act  as  surety  for  the  good  conduct  of  the  crim- 
inal, thus  stimulating  the  vigilance  of  the  officer. 

On  the  Continent  no  surveillance  is  exercised 
and  there  is  no  bond  for  good  conduct.  The  sus- 
pension of  sentence  is  sacrificed  only  in  case  of  a 
new  crime.  But,  on  the  other  hand,  the  power  of 
suspending  sentence  has  on  the  continent  been 
given  very  little  extent  since  it  is  limited  usually 
to  sentences  of  no  more  than  six  months.  It  can, 
therefore,  be  applied  only  to  offenses  not  very 
grave  in  character. 

Suspension  of  sentence  is  granted  usually  only 

to  first  offenders  even  when  this  is  not  expressly 

required   by   the    law.     The   underlying    theory    is 

that  those  who  are  not  criminals  by  birth  or  habit, 

ii  161 


CRIMINAL    PROCEDURE 

but  who  have  committed  crime  through  force  of 
circumstances,  shall  be  given  an  opportunity  to  re- 
trieve themselves,  to  begin  life  over  again.  It  is 
fcvery  evident  that  this  is  an  attempt  to  individualize 
punishment.  Let  us  see  how  well  it  works  out  in 
practise.  In  this,  as  in  every  form  of  individual- 
ization,  a  knowledge  of  the  character  of  the  crim- 
inal is  needed.  But  how  thoroughly  does  the  judge 
who  applies  suspension  of  sentence  know  this  char- 
acter? Since  criminal  procedure  is  intended 
to  determine  the  kind  of  a  criminal  act  committed 
and  not  to  reveal  the  character  of  the  criminal,  it 
is  only  incidentally  and  by  chance,  as  it  were,  that 
in  the  course  of  it  the  judge  comes  to  learn  any- 
hing  about  this  character.  And  it  is  on  the  basis 
of  this  very  small  amount  of  knowledge  that  he  has 
to  make  his  decision.  The  result  is  that  he  gets 
into  the  habit  of  granting  suspension  of  sentence 
according  to  the  circumstances  of  the  crime  and 
not  according  to  the  character  of  the  criminal. 
Thus  under  one  set  of  circumstances  he  will  almost 
always  grant  the  suspension,  while  under  another 
set  of  circumstances  he  will  almost  invariably  refuse 
it.  At  other  times  he  will  not  be  absolutely  certain 
of  guilt  and  will  therefore  grant  the  suspension  as 
a  sort  of  a  compromise.  Thus  we  see  how  very 
difficult  it  is  in  the  existing  procedure  to  put  into 
practise  the  suspension  of  sentence,  however  excel- 
lent it  may  be  in  theory. 

The  judge  is  better  able  to  make  his  decision 
when  he  is  aided  by  a  probation  officer  as  is  usually 
the   case  in  America.     He   can  then   remand   the 
162 


\l 


INDIVIDUALIZATION  OF  PUNISHMENT 

prisoner,  after  conviction,  without  imposing  a  sen- 
tence immediately  and  direct  the  officer  to  make  an 
investigation.  This  the  officer  does  by  talking  with 
the  prisoner  and  getting  his  story  and  then  verify- 
ing this  story  by  visiting  his  home,  the  places  where 
he  has  worked,  etc.  Very  frequently  also  he  sees 
the  plaintiff  and  learns  as  much  as  possible  about 
the  circumstances  under  which  the  crime  was  com- 
mitted. The  information  thus  gathered  he  reports 
to  the  judge,  frequently  with  a  recommendation 
as  to  the  best  way  of  disposing  of  the  case.  It  is 
evident  that  with  this  information  the  judge  is  in 
a  much  better  position  to  make  his  decision  than 
without  it.  Also  by  means  of  the  probation 
officer  the  judge  is  able  to  keep  in  touch  with  the 
criminal  after  his  release  and  to  impose  the  sentence 
if  the  criminal  proves  by  his  conduct  that  the  con- 
fidence of  the  judge  in  him  has  been  misplaced. 
But  even  the  probation  officer  is  forced  to  base  his 
recommendation  to  the  judge  on  external  circum- 
stances. It  is  true  that  when  talking  with  the 
criminal  he  is  able  to  get  some  impression  of  his 
character.  But  in  the  first  place,  the  officer  has 
not  had  the  training  in  criminal  anthropology 
which  would  enable  him  to  appreciate  the  signifi- 
cance of  such  anthropological  characteristics  as  are 
outwardly  apparent  while  even  if  he  had  this  train- 
ing he  would  not  have  the  opportunity  of  making 
the  physiological  and  psychological  examination 
necessary  for  a  complete  knowledge  of  these  char- 
acteristics. Thus  again  we  are  brought  face  to 
face  with  the  fact  that  the  existing  procedure  is 
163 


CRIMINAL    PROCEDURE 

not  adapted  to  revealing  the  facts  about  the  char- 
acter and  personality  of  the  criminal  which  are 
essential  for  individualizing  punishment. 

However,  notwithstanding  its  limitations,  the 
probation  system  has  its  utility  as  a  substitute  for 
something  worse  and  as  preparing  the  way  for 
something  better.  As  has  been  said,  it  is  especially 
fitted  for  occasional  criminals.  It  may  also  fre- 
quently be  used  for  juvenile  criminals.  Suspen- 
sion of  sentence  is  a  good  substitute  for  correctional 
punishment  or  imprisonment  for  short  periods  of 
time.  These  penalties  are  likely  to  do  a  great  deal 
of  harm  to  young  and  occasional  criminals  by  put- 
ting them  under  corrupting  influences.  They  can, 
besides,  have  but  little  utility  for  such  criminals, 
so  that  it  is  as  a  rule  better  to  release  them  espe- 
cially if  they  can  go  out  under  the  care  of  a  proba- 
tion officer. 

The  utility  of  suspended  sentences  depends 
somewhat  on  local  conditions  and  temperament. 
It  is  not  always  best  for  the  criminal  to  be  returned 
to  the  environment  in  which  he  has  committed  his 
crime.  Furthermore  his  release  is  likely  to  have 
a  bad  effect  on  others  who  are  more  likely  to  com- 
mit crime,  because  they  have  seen  him  return  un- 
punished. In  some  cases,  also,  the  plaintiff  is  in- 
censed that  the  person  who  has  injured  him  has 
not  been  punished  and  may  take  the  law  into  his 
own  hands,  in  revenging  himself.  It  was  the 
frequency  of  such  acts  in  Italy,  probably,  which 
led  Garofalo  to  advocate  that  the  consent  of 
the  injured  party  should  be  necessary  before  the 
164 


INDIVIDUALIZATION  OF  PUNISHMENT 

suspension  of  sentence  could  be  granted.1  This  is 
too  important  a  power  to  be  put  into  the  hands  of 
private  persons  and  would  furnish  the  opportunity 
for  the  manifestation  of  feelings  of  vengeance. 
But  another  element  should  be  introduced  into  the 
suspension  of  sentence  which  would  in  part  if  not 
wholly  counteract  these  tendencies  towards  ven- 
geance on  the  part  of  plaintiff  and  which  would, 
furthermore,  only  be  an  act  of  justice  to  those  who 
have  suffered  from  the  crime.  The  criminal 
should  be  forced  to  pay  damages  to  the  injured 
party,  this  being  a  condition  of  his  release.  If  the 
damages  are  too  large,  he  should  pay  in  proportion 
to  his  ability.  At  present  the  plaintiff  is  forced 
to  commence  a  civil  suit  for  damages,  which  is  a 
costly  and  uncertain  proceeding.  It  is  only  just 
to  him  and  the  effect  on  the  criminal  will  be  most 
salutary  to  make  this  payment  a  condition  of  re-  , 
lease.  As  a  matter  of  fact  in  America,  where  the  \ 
judges  have  a  power  over  the  criminal  after  re- 
lease, they  frequently  make  restitution  a  condition 
of  release,  instructing  the  probation  officer  to  see 
that  the  restitution  is  made  while  they  threaten  the 
criminal  with  the  execution  of  the  sentence  if  he 
fails.  Thus  it  would  be  but  one  more  step  to  or- 
ganize this  and  make  it  a  regular  part  of  the 
criminal  procedure. 

The  probation  system  has  been  developed  in 
America  largely  by  private  philanthropic  agencies. 
A  good  deal  of  the  work  has  been  done  by  volunteer 
workers  who  have  been  very  well-meaning,  but 

1  Bulletin  de  I'union  international  de  droit  penal,  1899. 
165 


CRIMINAL    PROCEDURE 

\  many  of  whom,  on  account  of  lack  of  experience 
and  a  rather  sentimental  point  of  view,  could  not 
be  very  efficient.  Probation  work  has  also  been 
done  by  policemen  who,  on  account  of  their  lack 
of  education  and  prejudiced  attitude  towards  crim- 
inals, are  peculiarly  unfitted  for  such  work.  Pro- 
bation work  should  be  done  by  intelligent  and 
experienced  officers  who  are  employed  by  the  state 
and  devote  all  their  time  to  this  work.  It  would 
then  be  done  as  efficiently  as  possible  under  present 
conditions.  We  have  seen  what  are  the  limitations 
of  probation  work  in  the  existing  system  of  pro- 
cedure. In  the  following  chapters  of  this  book 
will  be  outlined  a  system  of  procedure  peculiarly 
adapted  for  gathering  all  possible  information 
about  the  character  of  the  criminal  and  therefore 
for  individualizing  punishment.  In  this  new  sys- 
tem, as  we  shall  see,  some  of  the  functions  of  the 
probation  officer  will  be  taken  over  by  the  public 
defense,  which  will  be  an  important  element  in  the 
system,  and  will  be  performed  much  more  effect- 
ively by  it.  The  functions  which  will  be  left  be- 
long, strictly  speaking,  to  the  penal  system  and 
will  be  taken  over  by  it  when  that  system  is 
reorganized. 

A  forerunner  of  suspension  of  sentence  was  the 
judicial  admonition.  This  was  known  in  the 
Roman  law  as  the  severa  interlocutio,  in  canonical 
law  as  the  monitio  canonica  and  in  ancient  French 
law  as  correction  par  la  bouche  du  juge  or  blame. 
It  reappeared  in  modern  times  in  the  Bavarian 
code  of  1813,  in  the  Sardinian  code  of  1841,  in 
166 


INDIVIDUALIZATION  OF  PUNISHMENT 

Piedmont  in  1859,  and  has  existed  recently  in  the 
two  Sicilies,  Turkey,  Spain,  Portugal,  Russia  and 
the  Swiss  cantons  of  Vaud  and  Appenzell.1  In  a 
recent  Italian  code  it  was  called  "judicial  repri- 
mand" to  distinguish  it  from  the  admonition  of  the 
police.  The  judicial  admonition  consists  in  the 
release  of  prisoners  in  the  case  of  crimes  of  small 
importance  with  no  more  than  a  warning  from  the 
judge.  It  is  evident  that  this  warning  can  have 
but  little  effect.  As  Ferri  has  said:  "Either  the 
condemned  is  in  reality  an  occasional  delinquent 
sensitive  to  honor,  and  then  the  penal  judgment 
alone  will  serve  him  as  a  lesson,  without  it  being 
necessary  for  the  judge  to  address  to  him  a  little 
moral  discourse  or  a  sermon;  or  this  moral  sensi- 
tiveness is  lacking  in  the  condemned,  and  then  the 
words  of  this  reprimand  are  lost;  it  can  have  no 
useful  effect  either  upon  the  guilty  one  or  upon  the 
public."2  Suspension  of  sentence  is  much  more 
effective  than  this  admonition  especially  when  it  is 
accompanied  with  the  probation  system.  As  a 
matter  of  fact  in  America,  where  the  judges  are 
able  to  retain  a  surveillance  over  those  released  on 
suspension  of  sentence,  they  usually  accompany 
the  release  with  an  admonition. 

In  France,  by  means  of  the  rehabilitation,  the 
function  of  the  procedure  is  extended  beyond  the 
expiration  of  a  sentence  which  has  been  served  in 
prison.  Two  kinds  of  rehabilitation  exist.  The 

1Le  Courbe   in   the  Revue  penitentiaire,  Paris,   1891.     F. 
Dreyfus  in  the  Revue  penitentiaire,  Paris,  1890. 
2  Op.  cit.  pp.  611-612. 

167 


CRIMINAL    PROCEDURE 

first  is  legal  in  which,  after  a  certain  time  has 
elapsed  after  the  expiration  of  sentence,  in  the  case 
of  certain  crimes  the  record  of  the  condemnation 
is  effaced  without  any  action  being  necessary  on 
the  part  of  the  criminal,  provided  there  has  been 
no  recidivation.  The  time  which  must  elapse  de- 
pends upon  the  length  of  the  sentence  and  is 
usually  several  times  as  long  as  the  sentence.  The 
other  form  of  rehabilitation  is  judicial.  In  the 
case  of  certain  crimes  after  being  released  on  con- 
ditional liberation  if  the  condemned  has  lived  for 
three  years  in  the  same  arrondissement  and  two 
years  in  the  same  commune,  he  may  make  applica- 
tion for  rehabilitation.  Those  who  have  served  in 
the  army  or  whose  business  has  prevented  a  fixed 
residence  must  secure  attestations  from  military 
superiors  in  the  first  case  and  certificates  of  good 
conduct  from  employers  and  others  in  the  second 
case.  The  condemned  must  have  paid  all  fines 
and  damages  required  of  him  and  must  pay  the 
expenses  of  his  appeal  for  rehabilitation  unless  he 
can  prove  his  inability  to  pay  any  or  all  of  these. 
The  public  prosecutor  makes  inquiries  about  the 
residence,  the  conduct,  and  the  means  of  existence 
of  the  condemned  of  the  mayor,  the  justice  of 
the  peace  and  the  under  prefect.  Then  the  court 
of  appeal  after  having  heard  the  prosecutor  and 
the  counsel  of  the  condemned  decides.  If  the  re- 
quest is  rejected  it  can  be  repeated  in  two  years. 
If  it  is  accepted  the  record  of  the  conviction 
is  effaced  from  the  easier  judiciaire  of  the  con- 
demned. 

168 


INDIVIDUALIZATION  OF  PUNISHMENT 

This  is  what  gives  importance  to  the  rehabilita- 
tion. The  easier  judiciaire  exists  in  France  and 
several  other  European  countries.  It  is  a  judicial 
record  which  is  kept  of  every  native  inhabitant  at 
the  place  of  his  or  her  birth.  At  first  it  gives  the 
name,  time  and  place  of  birth  and  occupation. 
Then  if  a  person  is  convicted  of  a  crime  anywhere, 
notice  of  it  is  sent  to  his  birthplace,  where  it  is  re- 
corded in  the  easier  judiciaire.  A  copy  of  this  is 
also  sent  to  Paris  where  copies  of  the  casters  judi- 
ciaires  of  all  the  criminals  in  France  for  nearly  a 
century  are  kept  on  file  in  the  Palais  de  Justice. 
An  individual  can  secure  at  any  time  a  copy  of 
his  easier  judiciaire  and  when  seeking  employment 
it  is  usually  necessary  to  show  it.  A  criminal 
record  will,  of  course,  greatly  injure  one's  pros- 
pects of  securing  employment.  That  is  why  a  con- 
demned person  is  anxious  to  secure  rehabilitation, 
in  order  to  have  this  record  effaced  from  his 
easier. 

The  utility  of  the  cosier  judiciaire  has  been  dis-  \ 
cussed  a  good  deal.  It  helps  somewhat  in  individ- 
ualizing punishment  by  making  it  impossible  for  a 
condemned  person  to  hide  a  criminal  record.  For 
the  same  reason  it  is  an  aid  to  the  police.  But  it 
also  stigmatizes  the  criminal  going  out  from  prison 
and  thus  makes  it  harder  for  him  to  get  started  in 
an  honest  career.  It  is  most  easily  administered 
where  the  government  is  thoroughly  centralized 
as  in  France  and  therefore  could  with  difficulty  be 
installed  in  a  country  like  the  United  States  where 
the  government  is  much  decentralized. 
169 


CRIMINAL    PROCEDURE 

In  nothing  has  individualization  been  carried  so 
far  as  in  the  treatment  of  juvenile  criminals.  It 
is  probable  that  they  have  always  been  treated 
somewhat  differently  from  adults.  Their  imma- 
turity and  lack  of  knowledge  have  made  it  im- 
possible to  hold  them  as  strictly  accountable  for 
their  acts  as  adults.  Furthermore,  their  depend- 
ence upon  their  parents  and  subjection  to  parental 
control  has  given  them  a  peculiar  legal  status.  In 
recent  years  the  idea  has  been  growing  that,  because 
his  character  and  habits  are  not  fixed,  it  is  possible 
to  reform  the  young  criminal  and  that  therefore 
penal  treatment  should  be  adapted  to  this  purpose 
rather  than  to  punishment.  The  importance  of 
such  reformation  for  society  has  been  very  evident. 

The  principal  change  which  has  been  made  in  the 
legal  status  of  the  juvenile  criminal  has  been  with 
regard  to  his  penal  responsibility.  Most  legisla- 
tions now  assume  that  all  criminals  under  a  cer- 
tain age,  usually  sixteen,  have  committed  their 
crimes  without  discernment  or  at  least  admit  of 
the  proof  of  this  on  the  ground  of  youth.  The 
penalties  are  then  adjusted  according  to  whether 
or  not  discernment  has  been  proved,  in  both  cases 
the  penalties  being  less  severe  than  for  adults.  In 
some  legislations  an  age  still  lower  is  designated 
under  which  no  child  can  be  presumed  to  be  re- 
sponsible. Any  treatment  then  given  is  with  no 
punitive  object  whatever.  But  even  this  has  not 
been  satisfactory  and  it  has  been  contended  that 
the  division  should  be  carried  still  further  in  order 
to  permit  of  a  more  detailed  classification  of  juve- 

T7O 


INDIVIDUALIZATION  OF  PUNISHMENT 

nile  criminals.  One  writer  has  suggested  the  follow- 
ing division:  "Under  the  age  of  seven  years,  chil- 
dren will  never  be  prosecuted,  they  will  be  only 
the  object  of  admonitions  and  will  be  always  re- 
turned to  the  parents,  without  any  appearance  in 
court ....  Up  to  the  age  of  twelve  years,  the  child 
will  always  be  considered  as  having  acted  without 
discernment;  from  twelve  to  sixteen  years,  the 
judge  will  have  to  determine  if  there  is  discern- 
ment or  not ;  finally,  from  sixteen  to  eighteen  years, 
the  question  of  discernment  can  be  raised,  aside 
from  which,  whoever  has  been  declared  to  have  acted 
with  discernment  will  be  considered  as  an  adult  and, 
consequently,  as  fully  responsible  for  his  acts."1 

On  account  of  the  great  importance  of  individ- 
ualization  in  the  treatment  of  juvenile  criminals  all 
consideration  of  responsibility  should  be  abolished, 
not  only  moral  but  personal  responsibility,  and 
treatment  should  be  prescribed  in  accordance  with 
the  needs  of  each  particular  criminal.  It  is,  the 
author  believes,  possible  to  do  this  because  of  the 
difference  in  the  public  attitude  towards  the  child 
and  towards  the  adult  criminal  and  because  of  the 
much  greater  utility  of  educational  and  reformatory 
agencies  than  intimidatory  punishment  in  the  treat- 
ment of  children.  It  is  this  public  attitude  and  the 
realization  of  the  utility  of  these  agencies  which 
have  caused,  as  already  indicated,  the  changes  in  the 
procedure  and  penal  treatment  for  juveniles.  But 
these  changes  must  be  carried  much  farther  to  ar- 
rive at  the  requisite  degree  of  individualization. 

1  L    A.lbanel:  Le  crime  dans  la  famille,  Paris,  1900,  p.  189. 


CRIMINAL    PROCEDURE 

The  principal  changes  in  the  procedure  for 
juveniles  have  been  those  caused  in  America  by 
means  of  the  juvenile  courts.  These  courts  have 
grown  out  of  the  probation  system  which,  in  most 
states  where  it  exists,  was  intended  at  first  for 
juvenile  cases  and  which  in  some  states  is  still 
limited  to  these  cases.  Since  the  introduction  of 
this  system  caused  some  changes  in  the  procedure, 
the  juvenile  cases  were  usually  tried  apart  from 
the  other  cases.  This  in  turn  resulted  in  special 
legislation  with  regard  to  the  procedure  to  be  fol- 
lowed in  juvenile  cases.  It  is  not  possible  to  give 
a  definite  description  of  a  juvenile  court  on  ac- 
count of  the  differences  in  the  legislation  in  the 
twenty  or  more  states  where  special  provision  has 
been  made  for  juvenile  trials.  As  a  matter  of  fact 
the  juvenile  courts  exist  in  varying  stages  of  de- 
velopment. In  some  places  they  have  not  yet  got 
beyond  the  initial  stage  of  simply  trying  juvenile 
cases  at  a  different  hour  from  the  adult  cases,  though 
in  the  same  room  and  by  the  same  judge.  It  may 
be  questioned  whether  these  are  juvenile  courts  as 
distinguished  from  the  other  criminal  courts.  In 
other  places  the  juvenile  cases  ave  heard  in  a  dif- 
ferent room  or  building,  usually  by  judges  specially 
designated  for  this  purpose.  The  procedure  and 
its  scope  also  vary  in  different  degrees.  It  will, 
therefore,  be  worth  while  to  discuss  only  the  gen- 
eral characteristics  of  the  juvenile  court  movement 
in  order  to  determine  to  what  extent  the  treatment 
of  juvenile  criminals  has  been  individualized. 

As  has  already  been  stated  the  juvenile  cases  are 
172 


INDIVIDUALIZATION  OF  PUNISHMENT 

separated  from  the  adult.  This  is  done  in  order 
to  save  the  children  from  being  corrupted  by  older 
criminals  and  also  to  emphasize  the  peculiar  prob- 
lems involved  in  juvenile  cases.  An  effort  is.  usu- 
ally made  to  lessen  the  publicity  of  the  proceedings, 
sometimes  by  holding  the  trials  in  the  judge's 
chambers  or  in  a  small  courtroom.  The  object  is 
in  some  cases  not  to  alarm  the  child,  in  others  not 
to  stimulate  his  vanity  by  making  him  feel  that  he 
is  in  the  public  eye.  Legal  formalities  are  dis- 
pensed with  as  much  as  possible.  A  jury  is  not 
generally  used  though  the  law  frequently  requires 
that  one  shall  be  at  hand  to  be  used  when  necessary. 
Lawyers  are  used  very  little.  Frequently  a  public 
prosecutor  is  not  present  and  the  form  of  a  trial  is  • 
dispensed  with.  In  other  words  a  trial,  strictly 
speaking,  is  not  held.  This  is  possible  because 
usually  the  crimes  of  children  are  petty  and  are 
committed  with  more  or  less  publicity.  The  child 
will  usually  admit  its  act  with  a  little  questioning . 
and  a  witness  or  two  can  prove  its  character.  A 
trial  can  therefore  be  dispensed  with  and  the  judge 
merely  conducts  an  examination  to  determine  the 

cause   of  the   offense   and   the   circumstances   and 

t 

character  of  the  child  as  much  as  possible.  His 
principal  agent  in  this  work  is  the  probation  officer. 
Everything  is  done  to  remove  from  the  proceedings 
their  criminal  character.  It  has  even  been  sug- 
gested that  a  juvenile  court  should  not  be  a  crim- 
inal court  at  all.  "Juriscn'ction  in  cases  arising 
under  the  act  should  be  given  to  a  court  having 
common  law  chancery  powers — not  a  criminal 


law."1  It  is  easy  to  see  that  in  these  courts  the 
question  of  responsibility  is  hardly  ever  raised, 
showing  the  practicability  of  the  suggestion  made 
above  that  the  idea  of  responsibility  as  a  sanction 
for  punishment  be  abolished  entirely  from  the  treat- 
ment of  juvenile  criminals.  In  these  courts  in 
practise,  if  not  in  theory,  the  age  under  which  a 
child  cannot  be  found  guilty  of  a  crime,  which  ac- 
cording to  the  common  law  is  seven,  is  raised  to  the 
age  limit  for  juveniles  which  usually  is  sixteen. 
Thus  the  field  is  left  entirely  clear  for  individuali- 
zation. 

It  is  evident  that  the  efficiency  of  such  a  court 
must  depend  largely  upon  the  judge.  In  his  hands 
is  put  a  great  deal  of  power  which  he  is  free  to  use 
arbitrarily.  Consequently  he  should  be  well  ac- 
quainted with  juvenile  criminals  and  crime  in  order 
to  be  able  to  judge  cases  wisely.  This  is  why  it  is 
frequently  contended  that  the  juvenile  court  judge 
should  serve  continuously.  When  he  comes  to  the 
juvenile  cases  from  the  trial  of  other  cases,  he  is 
likely  to  bring  with  him  a  legal  point  of  view  which 
is  out  of  place  in  a  juvenile  court.  Continuous 
service  will  develop  in  him  the  right  attitude  and 
will  give  him  the  necessary  experience.  Further- 
more, the  authority  of  the  judge  over  the  children 
does  not  end  with  the  decision  of  the  cases,  but  it 
continues  as  long  as  they  are  on  probation  or  in  the 
institutions  from  which  they  can  be  discharged 
only  with  his  permission.  It  is,  therefore,  essential 
that  he  should  be  acquainted  with  the  history  of 

*  Harvey  B.  Kurd:  in  Charities  for  January  7,  1905. 
174 


INDIVIDUALIZATION  OF  PUNISHMENT 

each  individual  case  under  his  authority,  from  its 
beginning. 

The  methods  of  treatment  are  varied.  If  pos- 
sible, the  child  is  left  in  the  family  under  the  super- 
vision of  a  probation  officer.  But  this  is  not 
always  possible,  sometimes  because  the  child  is 
incorrigible  and  cannot  be  controlled  by  its  parents, 
sometimes  because  the  family  life  is  bad  for  the 
child  on  account  of  the  viciousness  of  the  parents  j 
or  for  some  other  reason.  The  child  is  then  sent 
to  the  institution  which  is  best  fitted  to  give  it  the  \ 
education  and  discipline  it  needs.  The  length  of 
detention  is  usually  indefinite,  the  maximum  limit 
being  the  age  of  majority  of  the  child,  which  is 
usually  twenty-one  years. 

This  brief  description  shows  to  what  an  extent 
the  juvenile  court  movement  has  individualized  the 
treatment  of  juvenile  criminals.  It  is  evident  that  * 
in  these  cases  the  crime  has  come  to  be  almost  en-  ^ 
tirely  ignored.  The  judicial  treatment  of  young  N 
criminals  has  come  to  be  in  some  places  an  agency 
of  the  educational  system.  And  this  is  an  excel- 
lent solution  in  many  cases.  But  there  is  danger 
of  forgetting  the  true  significance  of  the  crime. 
As  we  have  seen  in  the  second  chapter  the  crime  is 
frequently  the  sign  of  congenital  abnormality  in  the 
criminal,  such  as  congenital  criminality,  epilepsy, 
moral  imbecility,  etc.  When  such  abnormality  is 
the  cause  of  crime  in  the  child,  society  needs  to  be 
protected  against  it  as  much  as  when  it  manifests 
itself  in  an  adult.  Juvenile  courts  now  sometimes 
use  medical  skill  in  determining  the  treatment 
i75 


CRIMINAL    PROCEDURE 

needed.  But  more  than  that  is  necessary.  The 
services  of  an  expert  in  criminal  anthropology 
should  be  at  hand  to  diagnose  the  criminal  tenden- 
cies of  the  child  in  order  that  the  appropriate  meas- 
ures of  social  defense  may  be  taken  against  these 
[  tendencies.  It  is,  therefore,  the  defense  of  society 
]  which  must  not  be  forgotten  in  the  treatment  of 
juvenile  criminals.  Society  must  be  guarded 
against  anti-social  tendencies  which  are  as  danger- 
ous in  the  young  as  in  the  adults,  though  not  al- 
ways so  immediate  in  their  dangerousness.  And 
at  times  individualization  may  have  to  be  sacrificed 
in  the  interests  of  social  defense. 

The  tendency  of  the  juvenile  court  movement  is 
to  separate  entirely  the  procedure  in  juvenile  cases 
from  the  procedure  in  other  criminal  cases.  The 
question  may  be  raised  whether  this  distinction  will 
always  remain.  The  juvenile  courts  are  by  no 
means  what  they  ought  to  be.  But  the  old  proced- 
ure should  not  be  returned  to,  since  it  was  still  less 
fitted  for  dealing  with  juvenile  criminals.  The 
chief  significance  of  the  juvenile  court  movement 
is  that  in  breaking  away  from  the  old  procedure 
it  is  preparing  the  way  for  a  new  procedure  for 
adults  as  well  as  for  juveniles.  A  similar  idea  was 
expressed  in  one  of  the  resolutions  proposed  by 
Van  Hamel  and  adopted  at  the  Congress  of  Crim- 
inal Anthropology  at  Turin  in  1906.  "From  a 
theoretic  as  well  as  from  a  practical  point  of  view 
the  treatment  of  young  criminals  can  and  ought  to 
176 


INDIVIDUALIZATION  OF  PUNISHMENT 

be  the  prototype  for  the  treatment  of  adults."1  The 
juvenile  court  movement  should  lead  the  way  to  a 
procedure  based  on  a  scientific  knowledge  of  the 
criminal  and  of  the  causes  of  crimes  such  as  can  be 
gained  only  through  the  sciences  of  criminal  anthro- 
pology and  criminal  sociology.  When  that  time 
comes  it  may  be  found  that  the  procedure  for  juve- 
niles and  for  adults  need  not  differ  so  very  much. 
It  may  prove  best  to  have  the  same  judges  try  both 
kinds  of  cases.  Just  as  a  doctor,  in  order  to  under- 
stand the  diseases  of  adults,  needs  to  know  some- 
thing about  the  diseases  of  children  and  vice  versa, 
so  it  may  prove  that  a  judge  to  be  able  to  judge 
juvenile  criminals  will  need  to  understand  adult 
criminals  and  vice  versa.  On  the  other  hand,  a  cer- 
tain amount  of  specialization  may  prove  advisable 
as  in  the  medical  profession.  These  are  questions 
which  cannot  be  decided  now.  The  main  thing  is 
to  regard  the  present  distinction  between  procedure 
for  juveniles  and  procedure  for  adults  as  not  nec- 
essarily permanent  or  the  present  stage  of  develop- 
ment as  final. 

The  same  thing  is  to  be  said  of  all  the  recent 
modifications  in  procedure,  some  of  which  we  have 
briefly    reviewed.     Their  principal    significance    is 
that  they  are  preparing  the  way  for  greater  changes    , 
in  the   future.     Most  of  these  modifications  were  j    . 
originated   by   means   of  the   initiative    of  private  {/ 
agencies  inspired  usually  by   philanthropic  or   re- 
ligious   motives   or   both.     The   administration    of 

1  Archives    de    I'anthropologie    criminelle    et    des   sciences 
penales,  June,    1906. 

12  177 


CRIMINAL    PROCEDURE 

these  modifications  also  has  been  carried  on  largely 
by  private  agencies.  As  we  have  seen,  the  work 
done  by  them  has  lacked  a  scientific  basis  so  that 
it  has  resulted  in  a  failure  to  discriminate  between 
different  classes  of  criminals.  Its  general  tend- 
ency has  been  towards  leniency.  While  this  work 
has  revealed  a  warm  heart  it  has  not  always  been 
accomplished  with  the  best  of  judgment.  But 
it  has  shown  the  faults  of  the  old  system  and  has 
given  impetus  to  the  movement  towards  a  new 
one.  This  has  resulted  in  a  large  claim  for  pub- 
lic support  for  these  modifications  which  has 
caused  in  many  states  the  appropriation  of  money 
for  the  support  of  probation  systems,  of  juvenile 
courts,  etc.  It,  of  course,  goes  without  saying 
that  the  treatment  of  criminals,  which  is  of  the 
greatest  social  importance,  should  be  supported 
and  administered  by  public  agencies.  The  danger 
to  be  avoided  in  this  particular  instance  is  that 
of  adopting  changes  in  too  rigid  a  form  before 
their  real  value  has  been  proved.  It  would  be 
ell  if  every  government  would  provide  for  the 
scientific  study  of  criminological  problems  with  a 
view  to  putting  criminal  procedure  and  the  penal 
administration  on  a  scientific  basis.  This  is  the 
ideal  way  of  bringing  about  such  changes.  But 
governments  are  slow  to  take  these  measures  and 
it  has,  therefore,  been  left  to  private  agencies  to 
take  the  initiative.  Now  that  the  initiative  has  been 
taken,  it  is  incumbent  upon  the  public  authorities 
to  adopt  or  reject  the  proposed  changes.  Before, 
however,  any  decisive  action  should  be  taken,  a 
178 


INDIVIDUALIZATION  OF  PUNISHMENT 

careful  study  should  be  made  of  each  modification 
in  order  to  be  certain  of  its  utility.  In  some  cases 
where  a  modification  has  not  been  sufficiently  tried, 
it  may  be  best  to  leave  it  for  a  while  longer  in 
private  hands  where  on  account  of  its  flexibility  it 
can  be  more  easily  experimented  with.  Thus 
private  agency  would  play  the  same  part  in  the 
treatment  of  criminals  that  it  has  played  in  many 
other  social  problems,  namely,  that  of  introducing 
and  testing  innovations  before  their  adoption  by 
public  authorities. 

We  now  can  see  how  strong  is  the  tendency  to- 
wards the  individualization  of  punishment.  It  is 
evident  that  the  day  of  fixed  penalties  has  passed 
forever.  This  principle  which  was  the  corner- 
stone of  the  classical  theory  had  its  utility  in  a  day 
when  the  people  were  fighting  for  political  liberty 
against  absolutism,  but  is  now  historically  out  of 
date.  From  now  on,  individualization  will  be  one 
of  the  guiding  principles  in  the  treatment  of  crim- 
inals. But  we  must  not  forget  that  it  must  be  an 
individualization  adjusted  to  the  needs  of  social 
defense.  Though  usually  the  two  go  hand  in  hand 
and  individualization  is  one  of  the  principal  weapons 
of  the  social  defense,  still  at  times  it  is  necessary  to 
sacrifice  individualization,  whether  for  intimidation, 
in  response  to  public  demand,  or  to  uphold  the  exist- 
ing standard  of  morality,  and  to  determine  the 
penalty  according  to  some  other  criterion. 

In  this  chapter  we  have  been  discussing  judicial 
individualization  in  particular,  because  that  is  the 
kind  exercised  by  procedure.  But  this  must  be 
179 


CRIMINAL    PROCEDURE 

/ 
combined   with  administrative  individualization   in 

order  to  make  a  complete  system  of  individualiza- 
tion. This  second  kind  is  exercised  by  the  penal 
administration  and  therefore  does  not  come  within 
the  scope  of  this  book.  In  a  future  chapter  will  be 
discussed  the  means  of  connecting  the  two  so  as  to 
form  one  continuous  system. 

It  is  not  yet  possible  to  outline  a  complete  sys- 
tem of-  individualization.  In  the  first  place  a  clas- 
sification of  criminals  from  the  point  of  view  of 
social  defense  is  needed.  Secondly,  there  must  be 
a  classification  of  penalties  or  methods  of  treatment 
corresponding  to  this  classification  of  criminals. 
Let  us  see  before  closing  this  chapter,  what  sug- 
«  gestions  can  be  made  for  the  construction  of  such 
a  system.  As  a  basis  for  the  classification  of  crim- 
inals we  have  the  fundamental  distinction  between 
occasional  criminals  and  habitual  and  born  crim- 
inals. Each  of  these  divisions  can,  of  course;  be 
divided  into  many  sub-divisions.  In  order  to  in- 
dividualize the  punishment  of  occasional  criminals 
it  is  necessary  to  abolish  correctional  punishment 
in  general  except  where  it  may  be  necessary  to  re- 
tain it  for  social  defense.  This  form  of  punish- 
ment which  is  usually  imprisonment  for  short 
periods  according  to  the  nature  of  the  crime  usu- 
ally does  no  good  to  the  criminal  and  sometimes 
does  a  great  deal  of  harm  by  putting  him  in  the  cor- 
rupting atmosphere  of  a  prison.  In  place  of  cor- 
rectional punishment  the  payment  of  damages  can 
be  substituted  where  the  crime  reveals  no  bad 
180 


INDIVIDUALIZATION  OF  PUNISHMENT 

motive  or  tendency  towards  crime.  Where  the 
motive  is  bad  or  there  is  any  reason  for  suspecting 
a  tendency  towards  crime,  to  the  payment  of  dam- 
ages should  be  added  suspension  of  sentence  and 
probation  for  an  indefinite  period  until  there  is  no 
further  reason  to  fear  crime.  For  the  habitual  and 
born  criminals  the  indeterminate  sentence  within 
such  limits  as  have  been  indicated  above  exists. 
For  those  who  by  persistent  reciclivation  or  by  the 
peculiar  nature  of  their  crimes  have  proved  them- 
selves criminals  there  exist  several  methods  of 
elimination  such  as  imprisonment  for  life,  transpor- 
tation or  death. 


181 


CHAPTER  V 
CRIMINAL  LAW 

The  English  common  law  furnishes  the  basis  for 
the  criminal  law  of  England  and  of  most  of  the 
United  States.  This  system  of  law  was  developed 
by  means  of  decisions  rendered  by  judges  in  the 
course  of  several  centuries.  It  is,  therefore,  essen- 
tially practical  in  its  character  since  it  has  arisen 
out  of  concrete  cases.  And  as  it  is  still  based  in  a 
large  measure  on  judicial  decisions,  especially  in 
England  where  nothing  has  been  done  to  codify 
the  law,  there  has  been  little  inducement  to  search 
for  a  theoretic  basis  for  the  common  law.  English 
and  American  jurists  and  legal  writers  have  con- 
cerned themselves  very  little  with  the  philosophic 
aspect  of  the  principles  they  have  studied,  being 
principally  interested  in  tracing  them  to  their 
origin  in  judicial  decisions.  This  is  quite  in  con- 
trast with  Continental  jurists  and  writers  who  have 
always  paid  a  great  deal  of  attention  to  the  phil- 
osophic aspect  of  legal  principles.  This  was  noted 
a  good  many  years  ago  by  a  distinguished  Amer- 
ican jurist,  Justice  Story:  "There  is  a  remarkable 
difference  in  the  manner  of  treating  judicial  sub- 
jects between  the  foreign  and  the  English  jurists. 
182 


CRIMINAL    LAW 

The  former,  almost  universally,  discuss  every  sub- 
ject with  an  elaborate  theoretical  fulness  and  ac- 
curacy, and  ascend  to  the  elementary  principles  of 
each  particular  branch  of  the  science.  The  latter, 
with  few  exceptions,  write  practical  treatises  which 
contain  little  more  than  a  collection  of  the  prin- 
ciples laid  down  in  the  adjudged  cases,  with 
scarcely  any  attempt  to  illustrate  them  by  any  gen- 
eral reasoning,  or  even  to  follow  them  out  into 
collateral  consequences."1  It  has  been  a  great  loss 
to  our  law  that  it  has  not  been  treated  in  this 
philosophic  spirit.  This  treatment  would  be  a 
valuable  criticism  of  some  principles,  in  the  case  of 
others  it  would  greatly  broaden  their  application 
as  indicated  by  Story.  Especially  true  is  this  of 
criminal  law  which  should  always  keep  the  pace 
with  the  sciences  and  philosophy  which  deal  with 
social  relations.  The  fundamental  nature  and  the 
ultimate  object  of  criminal  law  should  always  be! 
kept  in  view  and  its  applications  always  adjusted 
to  the  current  conception  of  this  object.  This  is  ; 
constantly  being  done  on  the  Continent.  "It  is  I 
likewise  in  those  countries  where  many  would  make 
us  believe  that  life,  liberty  and  property  are  not  as 
sacredly  guarded  as  in  our  own  country,  that  the 
criminal  laws  are  a  constant  object  of  scholarly 
study  and  investigation.  The  great  progress  made 
in  the  study  of  crime,  the  building  up  of  a  criminal 
science  and  a  criminal  sociology,  is  almost  exclu- 
sively the  work  of  Continental  criminologists."2 

Quoted  in   the  preface   of  History  of  the  Trial  by  Jury, 
by  Wm.   Forsyth,   London,   1852. 

2  Gino  C.  Speranza  :  The  Decline  of  Criminal  Jurisprudence 
183 


CRIMINAL    PROCEDURE 

It  is  time  that  such  a  study  of  our  criminal  law 
was  made.  An  exhaustive  study  of  this  sort  does 
not  come  within  the  scope  of  this  book  but  inas- 
much as  modern  systems  of  criminal  procedure  and 
penal  codes  are  based  upon  and  very  largely  deter- 
mined by  the  fundamental  principles  of  criminal 
law  it  will  be  necessary  before  commencing  our 
study  of  procedure  to  review  briefly  these  principles 
as  illustrated  in  European  law  in  general  and  in  our 
own  law  in  particular.  In  this  review  will  be  in- 
dicated the  positive  value  of  these  principles  in  ac- 
cordance with  the  positive  principles  which  have 
been  elucidated  in  the  preceding  chapters. 

The  leading  principle  of  modern  criminal  law  is 
the  one  expressed  in  the  famous  axiom,  "nullum 
crimen,  nulla  poena  sine  lege,"  or,  as  it  is  some- 
times expressed,  "nulla  poena  sine  lege  criminali." 
This  axiom  means  that  no  one  can  be  prosecuted 
for  an  act  which  has  not  been  made  a  crime  by  law 
before  its  commission.  It  is  unnecessary  to  give 
here  an  exhaustive  historical  account  of  this  prin- 
ciple from  its  origin.  As  we  have  seen  in  the 
preceding  chapter,  before  the  French  Revolution 
the  judges  had  an  almost  unlimited  power  which 
they  exercised  most  arbitrarily.  Saleilles,  after 
stating  that  this  principle  was  not  recognized  in 
the  ancient  law  continues  as  follows :  "There  were, 
however,  certain  texts  of  laws  fixing  some  penal- 
ties as  sanction  of  an  act  foreseen  and  specially  in- 
criminating, some  customary  texts,  royal  ordinances 

in    America,    in    the   Popular  Science    Monthly,   New    York, 
February,    i 900. 

184 


CRIMINAL    LAW 

above  all."1  This  shows  that  only  in  exceptional 
cases  was  this  principle  applied.  The  eighteenth 
century  philosophers  reacted  strongly  against  the 
arbitrary  power  of  these  judges  and  its  tyrannical 
use.  Beccaria  states  their  position  as  follows:  "As 
each  magistrate  is  himself  a  part  of  society,  he 
cannot,  with  justice,  inflict  a  punishment  upon 
another  member  of  society,  if  it  is  not  already 
fixed  by  law.  .  .  .  The  criminal  judges  have 
therefore  as  much  less  the  right  to  interpret  penal 
laws  as  they  are  not  themselves  legislators."2  The 
principle  was  applied  by  the  French  National  As- 
sembly immediately  after  the  beginning  of  the 
Revolution  in  the  famous  declaration  of  rights  of 
August  26,  1789,  and  again  in  the  famous  law  of 
January  21,  1790,  which  is  the  basis  of  French  penal 
legislation.  The  principle  had  already  been  recog- 
nized in  the  section  of  the  American  Constitution 
forbidding  ex  post  facto  legislation.  It  is  now 
recognized  in  all  modern  penal  legislation. 

What  then  is  to  be  said  of  this  principle  from  the 
positive  point  of  view?  Broadly  speaking,  it  must, 
of  course,  be  accepted.  We  can  never  again  have 
judges  responsible  only  to  a  king  or,  as  the  eccle- 
siastical judges  claimed,  only  to  God.  The  power 
of  the  judge  must  be  legal.  That  is  to  say,  it  must 
be  conferred  upon  him  by  a  law  passed  by  the  peo- 
ple or  by  the  legislature,  as  representing  the  people. 
The  judge  is  then  responsible  to  the  people  from 
whom  he  derives  his  power.  Looked  at  in  this 

1  L'individualisation  de  la  peine,  Paris,   1898,  p.  46. 

2  Crimes  and  Punishments,   Chaps.   Ill    and  IV. 


CRIMINAL    PROCEDURE 

light  this  is  an  important  democratic  principle  which 
must  be  always  safeguarded  as  a  protection  against 
tyranny. 

But  when  we  come  to  the  practical  application 
there  may  be  a  difference  in  the  way  of  interpreting 
it.  The  first  part  of  the  axiom  "nullum  crimen 
sine  lege"  looked  at  from  a  very  general  point  of 
view  cannot  be  denied.  It  would  not  be  safe  to 
give  to  the  judge  unlimited  power  in  deciding 
what  is  a  crime.  The  legislative  power  must  al- 
ways indicate  against  what  acts  as  crimes  society 
reacts.  Otherwise  social  defense  would  become 
no  more  than  the  expression  of  the  private  standard 
of  morality  of  the  judge.  Furthermore  the  police 
would  not  know  against  what  acts  to  take  action  as 
being  criminal.  But  while  the  law  must  indicate 
what  acts  are  criminal  there  may  be  considerable 
variation  in  the  extent  to  which  the  acts  are  to  be 
classified.  After  the  French  Revolution  the  ten- 
dency was  to  classify  crimes  in  great  detail.  The 
same  is  true  of  the  common  law.  In  the  latter  part 
of  this  chapter  we  shall  discuss  a  much  more  gen- 
eral classification  of  crimes.  According  to  such  a 
classification  each  crime  would  still,  in  accordance 
with  the  principle  under  discussion,  be  foreseen 
and  designated  by  the  law,  but  the  relative  impor- 
tance of  crimes  among  themselves  would  be  left  in 
a  large  measure  to  be  determined  by  the  judge  ac- 
cording to  certain  standards  which  will  be  dis- 
cussed later. 

The  practical  application  of  the  second  half  of 
this  axiom,  "milla  poena  sine  lege,"  may  be  very 
186 


CRIMINAL    LAW 

much  changed.  The  penal  code  adopted  after  the 
French  Revolution  reacting  against  the  arbitrary 
power  of  the  judges  fixed  absolutely  the  penalty 
for  each  crime.  But  this  code  was  not  successful 
on  account  of  the  jury  which  insisted  upon  giving 
its  verdicts  in  accordance  with  the  penalties  which 
they  would  entail.  As  a  result  extenuating  cir- 
cumstances were  introduced  and  the  penalty  was  no 
longer  absolutely  fixed  by  the  law.  As  we  have 
seen  in  the  preceding  chapter  the  tendency  is  to- 
wards the  individualization  of  punishment  so  that 
this  principle  can  no  longer  be  applied  in  any  rigid 
manner.  But  this  does  not  mean  that  the  principle 
is  to  be  denied.  Punishment  cannot  and  ought  not 
to  be  inflicted  under  any  circumstances  which  have 
not  been  foreseen  by  the  law  though  the  law  may 
not  specify  the  exact  amount  and  character  of  the 
penalty  in  each  case. 

Thus  we  see  that  the  positive  point  of  view  does 
not  deny  this  principle  though  it  changes  greatly 
its  practical  application  and  also  lessens  its  prac- 
tical importance.  Von  Liszt  speaks  of  it  as  fol- 
lows :  "The  double  adage :  nullum  crimen  sine  lege, 
nulla  poena  sine  lege,  is  the  rampart  of  the  citizen 
against  the  omnipotence  of  the  State.  For  a  long 
time  I  have  characterized  the  penal  law  as  the  re- 
pressive power  of  the  S.tate  legally  limited."  This 
remark  and  its  context  would  seem  to  indicate  that 
the  writer  views  very  critically  this  principle.  It 
is  true  that  when  rigidly  applied  this  principle 
limits  and  in  fact  almost  paralyzes  the  social  de- 
fense against  crime.  But  when  applied  as  we  have 
187 


indicated  it  loses  this  tendency.  The  theory  of 
this  principle  must  always  be  retained  not  only  as 
a  protection  of  the  individual  against  society  as 
Von  Liszt  has  intimated,  but  also  of  society  itself 
against  those  who  may  attempt  to  exercise  an  un- 
warranted and  tyrannical  power.  The  penal  law 
as  expressing  the  will  of  society  must  sanction 
every  criminal  prosecution  and  every  penalty  im- 
posed however  much  latitude  may  be  given  within 
the  law  to  its  execution  and  the  application  of  penal 
treatment. 

A  logical  deduction  from  this  principle  is  that 
penal  law  is  non-retroactive  in  its  effect.  It  is  evi- 
dent that  no  act  committed  before  the  enactment 
of  a  law  can  be  prosecuted  under  tha*  law  since  it 
did  not  foresee  it.  One  exception,  however,  is 
made  to  this  rule.  When  a  new  law  abolishes  a 
crime  or  diminishes  its  penalty  this  law  may  be 
applied  to  the  benefit  of  those  who  have  committed 
the  offense  before  the  enactment  of  the  new  law 
but  who  have  not  yet  been  tried.  It  may  even  be 
applied  to  the  benefit  of  those  who  have  already 
been  sentenced.  There  are  various  practical  rea- 
sons in  favor  of  this  exception,  as,  for  example,  the 
feeling  of  injustice  among  the  public  at  seeing  an 
act  punished  which  is  no  longer  called  a  crime. 

Another  fundamental  principle  of  modern  crim- 
inal law  is  that  it  should  be  restricted  to  social 
interests.  Under  the  ancient  regime  individual 
liberty  was  violated  in  many  ways  as,  for  example, 
by  laws  creating  offenses  against  morality  and  re- 
ligion. But  the  French  Revolution  proclaimed  the 
188 


CRIMINAL    LAW 

liberty  of  religion  and  conscience  and  the  restric- 
tion of  penal  law  to  the  sphere  of  social  interests. 
Theoretically,  this  principle  is  quite  in  accordance 
with  the  positive  principle  of  social  defense  though 
in  practise  it  has  been  applied  very  differently. 
This  principle  is  now  pretty  generally  accepted 
though  some  exceptions  to  it  are  still  to  be  found. 
For  example,  in  the  English  law  it  is  provided 
that  anyone  "who  having  been  educated  in  or  at 
any  time  having  made  profession  of,  the  Chris- 
tian religion  within  this  realm,  by  writing,  print- 
ing, teaching,  or  advised  speaking,  denies  the 
Christian  religion  to  be  true,  or  the  holy  scriptures 
of  the  Old  and  New  Testament  to  be  of  Divine 
authority"1  is  guilty  of  a  misdemeanor.  This  prin- 
ciple, however,  is  not  in  harmony  with  certain  other 
principles  which  are  as  widely  accepted.  The  clas- 
sical school  started  out  with  the  principle  that  penal 
law  should  be  limited  to  social  interests  which  cor- 
respond to  the  positive  principle  of  social  defense. 
But  this  principle  gradually  developed  into  that  of 
the  defense  of  the  judicial  order.  The  object  of 
this  order  is  the  administration  of  an  absolute 
justice.  As  Garofalo  says  of  this  school,  "it  justi- 
fies punishment  by  the  necessity  of  defending  the 
rights  of  the  citizen,  but  it  adds  to  this  social  neces- 
sity a  regulator  or  moderator,  justice,  as  a  foreign 
element,  come  from  without,  something  superior  to 
social  necessity.  The  jurists  glide  thus  into  meta- 
physics, for  they  search  for  this  regulator  elsewhere 

1 A  Digest  of  the  Criminal  Law,  J.  F.  Stephen,  London, 
1904,  p.   127.,  Art.   181. 

189 


CRIMINAL    PROCEDURE 

than  in  social  necessity  itself."1  Another  principle 
which  has  a  great  deal  of  influence  is  that  punish- 
ment is  a  moral  compensation  for  the  harm  caused 
by  the  crime.  These  two  principles  interfere  with 
the  logical  application  of  the  principle  that  penal 
law  is  limited  to  the  sphere  of  social  interests. 

Another  principle,  in  part  derived  from  this  one, 
is  that  the  penalty  must  be  determined  by  social 
necessity.  This  is  in  accordance  with  the  positive 
principle  of  social  defense.  But  these  two  prin- 
ciples of  absolute  justice  and  of  moral  compensa- 
tion prevent  it  from  being  put  into  practise.  As 
we  have  seen  in  the  preceding  chapters,  social  neces- 
sity requires  that  punishment  should  as  a  rule  be 
determined  by  the  character  of  the  criminal.  But 
in  order  that  absolute  justice  should  be  attained  and 
that  moral  compensation  for  the  ill  done  should  be 
made,  punishment  has  been  adjusted  to  the  crime 
committed  instead  of  to  the  criminal.  The  result 
has  been  described  by  Prins  in  the  following  words : 
"For  it  (the  classical  school)  the  delinquent  was 
not  a  living  and  acting  man,  but  an  abstract  type, 
conceived  by  pure  reason  outside  of  real  life ;  for  it 
the  offense  was  not  a  part  of  this  real  life,  but  a 
juridical  formula,  inscribed  in  a  code;  for  it,  the 
penalty  was  not  a  social  defen.se  adapted  to  the  at- 
tack, but  a  theoretic  system  conceived  by  scholars 
who  did  not  take  into  account  the  nature  of  the 
delinquent."2 

lLa  criminologie,  Paris,  1905,  p.  298. 
*  A.   Prins :   Les   doctrines  n&uvettes  de   droit  penal,  Uni- 
versity of   Brussels,    1895-1896. 
190 


CRIMINAL    LAW 

Penal  responsibility  has  been  based  on  moral 
grounds  instead  of  upon  the  dangerousness  of  the 
criminal  which  is  the  only  logical  basis  in  accord- 
ance with  the  principle  of  social  defense.  But 
opinion  on  this  subject  is  beginning  to  change. 
Even  an  advocate  of  moral  responsibility  speaks 
as  follows:  "People  are  beginning  to  realize  that 
in  human  actions  and  in  the  genesis  of  crime  other 
things  must  be  considered  besides  free  will.  One 
must  place  beside  the  latter  the  influences  of  en- 
vironment, of  heredity,  of  temperament,  of  climate ; 
and  these  are  difficult  to  determine.  It  cannot  be 
denied  that  the  moral  sense  is  lacking  in  a  large 
number  of  criminals,  so  that  for  this  minority  at 
least  responsibility  is  only  a  fictitious  term,  a  con- 
ception imposed  by  the  necessity  for  social  protec- 
tion."1 Many  exceptions  to  moral  responsibility 
are  now  recognized  in  nearly  all  codes  in  the  form 
of  limited  responsibility  or  total  absence  of  it  on 
account  of  alienation,  youth,  constraint,  accident, 
etc.  Thus  gradually  moral  liberty  will  be  replaced 
by  dangerousness  to  society  as  a  basis  for  penal 
responsibility.  When,  therefore,  punishment  is 
adapted  to  the  character  of  the  criminal  and  the 
basis  of  penal  responsibility  is  social  these  two 
principles  that  penal  law  should  be  restricted  to 
social  interests  and  that  punishment  should  be 
determined  by  social  necessity,  which  have  always 
been  theoretically  in  accord  with  the  positive 

1 E.  Jarno  in  Penal  Codes  of  France,  Germany,  Belgium 
and  Japan,  edited  by  S.  J.  Barrows,  Washington,  1901. 
191 


\ 


CRIMINAL    PROCEDURE 

principle  of  social  defense,  can  at  last  be  applied 
in  practise. 

Another  principle  which  like  the  three  preced- 
ing was  generally  adopted  after  the  French  Revo- 
lution was  that  of  the  equality  of  the  citizen  before 
the  law.  This  principle  is  put  into  practise  almost 
everywhere  to-day.  The  only  exception  is  when 
the  pardoning  power  is  used.  It  is  evident  that  to 
pardon  a  criminal  is  to  discriminate  in  his  favor 
against  the  others  who  have  committed  the  same 
crime  and  is,  therefore,  a  violation  of  this  principle 
of  equality.  It  is  true  that  pardon  is  used  in  cer- 
tain cases  as  a  makeshift  where  reform  is  needed 
in  the  code  or  procedure.  For  example,  political 
criminals  or  strikers  may  be  given  legislative  am- 
nesty after  the  conditions  which  demanded  their 
punishment  have  disappeared.  In  Germany  juve- 
niles are  put  on  probation  by  means  of  the  pardon- 
ing power  of  the  princes.  In  England  it  has  been 
used  in  the  place  of  a  criminal  court  of  appeal,  the 
Home  Secretary  examining  the  cases  which  ought 
to  be  appealed  and  granting  pardon  when  there 
seemed  to  be  a  mistake  in  the  decision.  This 
"should,  however,  no  longer  be  necessary  since  a 
bill  was  passed  by  Parliament  in  1907  establishing 
a  criminal  court  of  appeal.  In  all  these  cases  the 
pardoning  power  would  no  longer  need  to  be  used 
if  the  appropriate  changes  were  made  in  the  law. 
As  Filangieri  has  said:  "Every  pardon  accorded 
to  a  criminal  is  a  derogation  of  the  law;  for,  if  the 
pardon  is  equitable,  the  law  is  bad:  and  if  the  law 
is  just,  the  pardon  is  an  infringement  upon  the  law ; 
192 


CRIMINAL    LAW 

in  the  first  hypothesis  it  is  necessary  to  abolish  the 
law,  and  in  the  second  to  abolish  the  pardon."1 

Another  important  principle  is  that  of  premedita- 
tion and  intention  as  a  criterion  of  crime.  The 
significance  of  premeditation  has  not  always  been 
the  same.  Among  barbarians  the  effect  of  premed- 
itation has  been  to  attenuate  the  crime  because  it 
indicated  courage.  In  other  words  cowardice  was 
punished  rather  than  the  crime  committed.  In  a 
Russian  code  of  the  eleventh  century  murder  was 
punished  more  severely  if  committed  without  draw- 
ing the  sword  from  its  sheath.  In  Sweden  the , 
ancient  laws  punished  more  severely  the  murder  of 
a  man  unable  to  defend  himself.  In  the  times  of 
the  Crusades  feudal  Europe  punished  most  severely 
homicide  by  order  as  showing  the  greatest  lack  of 
courage.2  But  in  the  Roman  law  premeditation 
was  regarded  as  an  indication  of  crime.  It  was 
recognized  in  the  Caroline,  a  code  adopted  in  Ger- 
many in  1532,  and  has  been  incorporated  in  all 
modern  penal  legislation  except  the  English  and 
its  derivatives.  Premeditation  as  a  criterion  of 
crime  is  a  recognition  of  the  psychological  aspect 
of  crime.  Going  beyond  the  objective  and  material 
fact  that  a  certain  act  has  been  committed  it  looks 
into  the  mind  of  the  person  committing  it  in  order 
to  determine  whether  the  act  was  foreseen.  But 
this  is  the  most  elementary  factor  in  the  psycho- 
logical aspect  of  crime  and  this  principle  has  been 
carried  further  to  include  the  intention  with  which 

1  La  scienza  delta  legislazione,  Book  III,  Part  IV,  Chap.  57. 

2  G.  Tarde:  La  philosophic  penale,  Paris,  1890. 

?3  193 


CRIMINAL    PROCEDURE 

a  crime  is  premeditated.  On  the  Continent,  there- 
fore, to  prove  a  crime  it  is  usually  necessary  to 
prove  the  existence  of  premeditation  with  a  crim- 
inal intent.  This  is  a  tendency  towards  recogniz- 
ing crime  as  a  psychic  phenomenon  but  this 
tendency  has  not  been  logically  carried  out  in  penal 
treatment.  After  the  commission  of  a  crime  has 
been  determined,  punishment  is  inflicted  principally 
in  accordance  with  the  criminal  act  committed  and 
not  according  to  the  criminal  character  revealed 
by  the  act.  Furthermore,  this  tendency  has  not 
as  yet  been  carried  very  far  and  its  application  has 
not  always  been  wise. 

A  study  of  various  kinds  of  crimes  reveals  that 
premeditation  and  intention  do  not  furnish  a  com- 
plete or  universal  criterion  for  crime.  They  are 
but  symptoms  as  the  crime  itself  is  a  symptom  and 
do  not  afford  a  full  measure  of  the  character  of 
the  criminal.  And  first  with  regard  to  premedita- 
tion. Certain  crimes  of  passion  are  premeditated 
where  the  intention  is  not  criminal.  "Sometimes, 
however,  there  are  criminals  by  passion  who  also 
premeditate  crime  and  execute  it  insidiously,  either 
on  account  of  their  less  impulsive  temperament,  or 
under  the  influence  of  prejudices  and  of  common 
sentiment,  in  the  cases  of  endemic  crime.  And  this 
is  why,  according  to  criminal  psychology,  the  crite- 
rion of  premeditation  does  not  possess  an  absolute 
value  to  characterize  the  born  criminal  by  compar- 
ison with  the  criminal  by  passion ;  for  it  depends 
upon  the  individual  temperament  more  than  every- 
thing else,  and  is  encountered  equally  in  the  crimes 
194 


CRIMINAL    LAW 

committed  by  one  of  the  anthropological  types  of 
criminals  as  by  the  other."1  On  the  other  hand 
absence  of  premeditation  does  not  necessarily  indi- 
cate absence  of  criminal  character.  "The  character 
of  the  murderer  does  not  depend  upon  reflection 
more  or  less  prolonged.  The  rapidity  of  the  act 
has  no  relation  with  the  corrigible  or  incorrigible 
nature  of  the  agent ;  it  is  not  incompatible  with  the 
most  complete  absence  of  moral  sense."2  Numer- 
ous other  cases  might  be  cited  to  show  that  pre- 
meditation is  not  always  a  reliable  criterion  of 
crime.  But  we  may  go  farther  and  show  that  the 
intention  also  is  not  a  universal  criterion.  In  the 
case  of  criminal  acts  committed  by  the  insane,  for 
example,  the  intention  may  be  to  cause  injury  and 
yet  without  any  discernment  of  the  anti-social  char- 
acter of  the  act.  "But  the  intention  itself,  can  it 
suffice  to  enable  us  to  affirm  the  existence  of  crime  ? 
For  many  insane  persons  really  have  the  intention 
of  causing  damage,  of  committing  incendiarism, 
even  of  murder.  No,  because  the  crime  exists  for 
us  only  as  the  revelation  of  a  character,  the  effect 
of  dishonesty  or  of  cruelty,  congenital  or  acquired, 
but  in  every  case  become  instinctive,  so  that  one 
may  expect  new  deeds  of  the  same  sort  from  the 
same  individuals."3 

These  examples  show  the  limited  extent  to  which 
premeditation  and  intention  can  serve  as  a  criterion 
of  crime.  Such  a  criterion  belongs  to  those  whom 

1 E.  Ferri :  La  sociologie  criminelle,  Paris,  1905,  pp.  166- 
167. 

2  R.  Garofalo :  La  criminologie,  Paris,  1905,  p.  406. 

3  R.  Garofalo :  Op.  cit.  pp.  307-308. 

195 


CRIMINAL    PROCEDURE 

Ferri  has  called  the  "simplicists  of  the  penal  law." 
These  are  the  jurists  who  wish  to  base  their  crite- 
rion of  crime  upon  one  or  two  characteristics  alone 
of  the  criminal.  The  preceding  chapters  have 
shown  how  necessary  it  is  to  use  the  data  of  crim- 
inal anthropology  as  a  basis  for  our  criterion  of 
criminality.  Especially  true  is  this  in  the  case  of 
the  born  and  insane  criminals  where  the  factors 
which  cause  criminality  are  very  numerous  and 
complex. 

Furthermore  this  criterion  based  on  premedita- 
tion and  intention  is  closely  connected  with  the  doc- 
trine of  moral  responsibility.  On  the  hypothesis 
of  moral  liberty  it  is  considered  sufficient  to  know 
that  a  criminal  act  was  committed  with  premedita- 
tion and  that  the  intention  was  evil.  When  the 
dangerousness  of  the  criminal  to  society  replaces 
the  doctrine  of  moral  responsibility  the  nature  of 
the  criminal  will  become  the  criterion  of  crime. 

The  doctrine  of  the  English  common  law  with 
regard  to  this  matter  is  characteristic  of  its  empir- 
ical origin  in  the  decisions  of  judges.  In  general, 
certain  acts  are  regarded  by  the  law  as  crimes  with- 
out any  reference  to  the  purpose  which  inspired 
them.  The  criminal  intent  of  these  acts  is  pre- 
sumed. It  is  evident  that  this  is  a  very  objective 
and  material  view  of  crime.  No  consideration 
whatever  is  taken  of  the  psychological  aspect  of 
a  crime.  But  it  is  evident  that  such  a  rigid  and 
unilateral  principle  could  never  have  worked  out 
in  practise.  Its  application  in  many  cases  would 
have  caused  the  most  apparent  injustice.  It  was 
196 


CRIMINAL    LAW 

therefore  qualified  in  two  ways.  In  the  first  place 
in  the  case  of  certain  crimina-l  acts  it  became  neces- 
sary to  prove  a  purpose,  called  the  specific  intent, 
of  an  evil  and  malicious  sort.  In  other  words  the 
proof  of  the  commission  of  the  act  alone  was  not 
sufficient  proof  of  the  crime.  In  the  second  place 
it  became  possible  to  rebut  the  presumption  of 
criminal  intent  under  certain  conditions.  Thus  an 
infant  under  seven  years  of  age  is  conclusively  pre- 
sumed by  the  law  to  have  no  criminal  intent.  Be- 
tween seven  and  fourteen  there  is  no  presumption 
of  such  an  intent  and  its  existence  would  have  to 
be  proved.  An  insane  person  is  conclusively  pre- 
sumed by  the  law  to  have  no  criminal  intent.  The 
other  grounds  for  rebutting  this  presumption  are  : 
mistake,  accident,  necessity  and  compulsion.  By 
means  of  these  qualifications  the  common  law  is 
more  or  less  practical.  But  it  is  evident  that  the 
underlying  theory  is  very  crude  and  therefore  the 
English  criminal  law  and  the  systems  derived  from 
it  in  America  and  elsewhere  are  not  as  well  pre- 
pared in  their  theory  for  the  incorporation  of  the 
new  criminological  ideas  as  the  -Continental  sys- 
tems. This  is  further  proof  of  the  contention 
made  at  the  beginning  of  this  chapter  that  Anglo- 
American  criminal  law  has  not  been  developed  in 
the  same  philosophic  spirit  as  upon  the  Continent. 
We  have  already  discussed  the  expedient  of  ex- 
tenuating and  aggravating  circumstances  which  is 
a  very  empirical  attempt  to  place  penal  treatment 
on  a  psychological  basis.  We  have  seen  how  this 
originated  in  the  conduct  of  the  jury  in  France. 
197 


CRIMINAL    PROCEDURE 

The  jury  refusing  to  heed  the  regulation  that  they 
were  to  make  their  decisions  regardless  of  the  penal 
consequences  acquitted  in  many  cases  where  guilt 
was  certain  because  they  regarded  the  punishment 
as  too  severe.  To  prevent  this  the  expedient  of  ex- 
tenuating circumstances  was  introduced,  the  power 
of  granting  them  being  given  first  to  the  judge 
in  1824  and  then  in  1832  being  given  to  the  jury 
because  it  did  not  have  sufficient  confidence  in 
the  judge  and  continued  to  acquit  too  frequently. 
In  a  similar  fashion  was  introduced  the  power  of 
granting  aggravating  circumstances  in  which  case 
^  the  penalty  was  increased.  This  expedient  of  ex- 
tenuating or  aggravating  circumstances  is  a  slight 
tendency  toward  placing  the  penal  treatment  as 
well  as  the  determination  of  the  crime  on  a  psycho- 
logical basis.  But  it  is  an  attempt  of  the  most 
empirical  sort  and  is  put  into  practise  with  very 
little  knowledge  of  the  psychology  of  the  criminal. 
Frequently  this  principle  is  applied  in  a  way  detri- 
mental to  social  defense  as,  for  example,  when  ex- 
tenuating circumstances  are  granted  on  the  ground 
that  a  crime  was  committed  under  a  more  or  less 
irresistible  force.  If  this  force  was  some  sudden 
and  unusual  passion  seizing  hold  of  a  normal  per- 
son it  may  be  logical  to  grant  the  extenuating  cir- 
cumstances. But  if  this  force  comes  from  some 
deep-seated  characteristic  of  the  individual  which 
makes  him  a  permanent  danger  to  society,  to  grant 
extenuating  circumstances  is  to  violate  the  principle 
of  social  defense.  The  truth  is  that  this  expedient 
of  extenuating  circumstances  is  based  upon  the 
198 


doctrine  of  moral  responsibility  like  the  criterion  of 
premeditation  and  intention  we  have  just  been  dis- 
cussing. It  is  because  it  is  believed  that  the  moral 
liberty  of  these  individuals  has  been  limited  that 
these  extenuating  circumstances  are  granted. 
Again  we  must  say  as  we  have  just  said  in  connec- 
tion with  the  criterion  of  premeditation  and  inten- 
tion that  moral  responsibility  as  a  criterion  must 
be  replaced  by  the  dangerousness  of  the  criminal 
to  society.  As  Garofalo  has  put  it:  "Let  this  con- 
sideration (moral  responsibility)  be  replaced  by 
that  of  the  perversity  of  the  criminal,  and  it  will  be 
perceived  that  several  circumstances  that  are  usu- 
ally called  extenuating,  become  entirely  indifferent 
or  require  a  different  treatment."1 

A  very  important  class  of  crimes  is  that  of  the 
attempted  crimes.  These  are  also  among  the  hard- 
est crimes  to  judge.  There  are  two  different  doc- 
trines with  regard  to  the  attempt.  "In  Germany 
and  in  Italy  there  exists  an  objective  doctrine  of 
the  attempt,  which  maintains  that  it  is  punishable 
only  when  the  intention  has  been  realised  in  part, 
so  that  the  attempt  is  only  a  fragment  of  the  crime 
that  was  to  be  committed  in  having,  like  that,  an 
objective  side."2  In  other  words  the  attempt  con- 
sists fundamentally  in  an  act  and  this  is  what  makes 
this  an  objective  doctrine.  This  is  also  the  doc- 
trine of  the  common  law.  A  statement  as  to  the 
nature  of  the  act  which  constitutes  an  attempt  is 
usually  connected  with  this  doctrine.  "In  France 
and  in  Italy  it  is  required  that  the  criminal  intent 

T  Op.  cit.  pp.  360-361.  2  R.  Garofalo :  Op.  cit.  p.  339. 

199 


CRIMINAL    PROCEDURE 

should  be  manifested  by  acts  capable,  by  their  own 
nature,  of  producing  crime,  which  prevents  the  pur- 
suit of  criminal  attempts,  when,  by  error,  the  agent 
has  employed  means  insufficient  or  incapable  of 
enabling  him  to  attain  his  object."1  The  same 
provision  is  made  in  the  common  law.  "Thus  it 
has  been  held  that  a  boy  under  fourteen  cannot  in- 
tend to  commit  rape,  or  a  forger  intend  to  defraud 
a  person  or  corporation  which  does  not  exist ;  while, 
on  the  other  hand,  it  has  been  decided  that  there 
may  be  an  attempt  to  pick  a  pocket,  though  the 
pocket  contains  nothing,  or  an  attempt  to  kill,  al- 
though the  intended  victim  is  not  within  actual 
reach  of  the  weapon."2  Many  subtle  distinctions 
have  been  made  as  to  what  acts  constitute  an  at- 
tempt which  we  have  not  the  space  to  consider 
here. 

The  other  doctrine  of  the  attempt  is  the  subjec- 
tive doctrine.  According  to  this  the  fundamental 
characteristic  of  an  attempt  is  the  intention  to  com- 
mit a  crime.  "As  the  Roman  law  had  established 
it,  in  the  attempt  it  is  only  the  intention  which  has 
value;  the  material  act  has  none.  From  the  mo- 
ment that  no  damage  exists,  tfie  will  alone  can  be 
punished;  it  matters  little  therefore  that  it  has  used 
a  means  which  had  no  probability  of  success."3 
This  does  not  mean  that  the  act  has  no  significance 
whatever  but  its  significance  consists  in  the  fact 
that  it  is  an  expression  of  the  will  of  the  agent. 

1  R.  Garofalo :  Op.  cit.  p.  339. 

2Wm.  C.  Robinson:  Elementary  Law,  Boston,  1882,  pp. 
303-304- 

3  R.  Garofalo :    Op.  cit.  p.  341. 
200 


CRIMINAL    LAW 

The  theory  of  the  attempt  is  thus  put  on  a  psycho- 
logical basis.  The  fact  that  the  means  used  could 
not  accomplish  the  crime  is  of  no  importance  so 
long  as  a  criminal  intent  and  character  is  revealed. 
An  exception  to  this  is  when  the  insufficiency  of 
the  means  used  displays  utter  incapacity  to  commit 
crime.  "In  such  cases  there  will  be  no  crimes, 
not  on  account  of  the  insufficiency  of  the  means, 
but  because  this  insufficiency  is  an  evident  proof 
of  the  inaptitude  of  the  agent."1  This  exception 
was  recognized  in  the  ancient  codes  of  Hanover, 
Brunswick,  Nassau  and  Baden  which  provided  that 
attempts  in  which  insufficient  means  had  been  used 
were  not  punishable  if  the  choice  of  means  was  the 
result  of  superstition  or  imbecility. 

These  are  the  two  theories  of  attempted  crime. 
It  is  evident  that  from  our  positive  point  of  view 
we  must  adopt  the  subjective  theory  as  basing  it- 
self upon  the  criminality  embodied  in  the  person  of 
the  criminal.  But  how  is  this  theory  to  be  applied 
in  practise?  The  attempt  may  be  considered  as 
equal  in  gravity  to  the  accomplished  crime  or  as 
less  than  the  accomplished  crime.  It  has  been  the 
tendency  of  the  subjective  theory  to  adopt  the  first 
view  and  of  the  objective  theory  to  adopt  the  sec- 
ond. 

It  is  very  evident  why  the  objective  theory 
should  regard  the  attempt  as  less  than  the  accom- 
plished crime.  Inasmuch  as  the  attempt  is  less  in 
quantity  than  the  accomplished  crime  it  must  be 
considered  as  less  grave  according  to  an  objective 

1  R.  Garofalo :  Op.  cit.  p.  343. 
201 


CRIMINAL    PROCEDURE 

standard.  It  might  be  argued  that  according  to 
this  theory  the  attempt  should  not  be  punished  at 
all  since  as  a  rule  its  objective  result  as  a  crime  is 
nothing.  But  this  would  obviously  be  very  dan- 
gerous for  society  and  such  rigid  logic  has  been 
carried  out  only  in  the  case  mentioned  above  when 
the  means  used  could  not  possibly  attain  the  crim- 
inal object.  This  theoretic  objection  to  punishing 
the  attempt  according  to  the  objective  doctrine 
was  recognized  and  the  practical  reason  for  pun- 
ishing it  somewhat  less  than  the  accomplished  crime 
(was  formulated  by  Beccaria  in  the  following  pas- 
sage :  "Although  the  laws  do  not  punish  the  inten- 
tion, it  is  not  less  true  that  a  crime  commenced 

;  by  any  act  which  proves  the  will  to  commit  it  merits 
a  penalty,  but  less  grave  than  the  one  which  would 
be  inflicted  if  it  had  been  committed.  The  im- 

;  portance  of  preventing  an  attempt  authorizes  this 
punishment;  but  as  there  may  be  an  interval  be- 
tween the  project  and  its  execution,  the  fear  of  a 
more  rigorous  penalty  may  also  produce  repentance ; 
it  may  stop  the  scoundrel  ready  to  become  guilty."1 
If  it  is  true  that  criminals  are  frequently  stopped 
from  consummating  a  crime  by  the  knowledge  that 
punishment  for  the  attempt  is  less  severe  than  for 
the  accomplished  crime  this  would  be  a  very  good 
reason  for  making  the  penalty  for  the  attempt  less 
severe.  But  it  is  probably  true  that  in  the  case 
of  the  majority  of  crimes  there  is  not  a  sufficient 
interval  between  the  beginning  and  the  end  of  a 
criminal  act  to  give  time  for  a  consideration  of  this 

1  Crimes  and  Punishments,  Chap.  XXXVII. 
202 


CRIMINAL    LAW 

fact.  And  even  if  there  was  sufficient  time  a 
criminal  is  not  likely  to  have  sufficient  foresight  to 
think  of  it,  if  indeed  the  majority  are  aware  that 
such  a  distinction  is  made.  It  is  therefore  doubt- 
ful if  it  is  wise  to  make  the  punishment  for  the 
attempt  always  less  grave  for  this  reason  alone. 

Another  reason  for  making  the  penalty  for  the 
attempt  less  severe,  which  probably  deserves  more 
weight,  is  that  there  is  a  feeling  among  the  public 
that  the  attempt  is  not  so  grave  an  offense  as  the 
accomplished  crime.  Evidence  of  this  has  been 
shown  in  France.  The  French  penal  code  pro- 
vides that  the  attempt  shall  be  punished  as  the 
accomplished  crime  itself.  But  this  provision  is 
constantly  eluded  by  the  jury  by  granting  extenuat- 
ing circumstances  in  the  case  of  an  attempt.  If  the 
popular  feeling  is  that  the  attempt  should  be  pun- 
ished less  severely  it  is  necessary  to  heed  it  how- 
ever mistaken  it  may  be  from  a  scientific  point  of 
view,  because  otherwise  a  feeling  of  distrust  of 
justice  may  be  developed.  It  is  dangerous  in  mat- 
ters of  justice  to  advance  far  beyond  the  thought 
and  feeling  of  the  public. 

The  French  law  does  not  punish  preparatory 
acts  as  an  attempt  though  they  may  be  punished 
as  separate  misdemeanors.  The  reason  for  this 
is  not  to  attach  penal  responsibility  too  early  in 
order  to  give  the  criminal  a  reason  for  desisting 
from  his  enterprise.  But  when  the  attempt  has 
been  made  it  is  assimilated  with  the  crime  itself  and 
punished  like  it,  though,  as  we  have  seen,  the  jury 
203 


CRIMINAL    PROCEDURE 

constantly  eludes  this  by  granting  extenuating  cir- 
cumstances. 

A  distinction  is  sometimes  made  between  the  at- 
tempted crime  and  the  abortive  or  miscarried  crime 
(delit  manque,  avorte},  in  other  words  where  the 
criminal  has  done  all  in  his  power  but  has  failed 
through  circumstances  which  he  could  not  control. 
It  is  evident  that  in  this  case  in  accordance  with 
the  positive  theory  there  is  even  more  reason  to 
assimilate  the  abortive  with  the  accomplished  crime 
than  in  the  case  of  the  attempt  because  the  criminal 
has  done  all  in  his  power  to  commit  the  crime  and 
has  fully  manifested  his  criminal  character,  where- 
as in  the  case  of  the  simple  attempt  the  criminal 
may  have  desisted  of  his  own  accord  thus  mani- 
festing less  criminality. 

A  study  of  the  various  classes  of  crimes  which 
are  not  fully  consummated  and  still  more  so  of  in- 
dividual cases  in  these  classes  shows  that  it  is  im- 
possible to  have  a  single  and  unilateral  rule  for 
them  all.  As  in  the  case  of  all  these  fundamental 
principles  of  penal  law  all  the  factors  in  each  case 
must  be  taken  into  consideration  and  the  decision 
must  depend  upon  the  criminality  of  the  agent  or 
his  dangerousness  to  society.  Ferri  has  indicated 
the  complexity  of  the  problem  in  the  following 
words :  "But  furthermore  it  must  never  be  forgot- 
ten that  the  attempt  must  no  longer  be  judged  by 
itself  or  in  its  abstract  relations  to  the  juridical 
order,  as  the  classical  school  does  it,  but  that  it 
must  always  be  considered  as  a  criterion  which  is 
joined  to  that  of  the  determining  motives  and  to 
204 


CRIMINAL    LAW 

that  of  the  anthropological  category  of  the  delin- 
quent."1 The  important  thing  therefore  is  to  im- 
prove our  means  of  ascertaining  the  determining 
motives  of  criminals  and  their  anthropological  char- 
acteristics and  that  is  the  aim  of  the  present  study 
of  criminal  procedure. 

A  question  of  penal  law  closely  connected  with 
that  of  the  attempt  is  complicity.  In  the  common 
law  a  distinction  is  made  between  the  principal 
who  committed  the  criminal  act  and  the  accessory 
who  assisted  in  the  case  of  felonies.  In  cases  of 
treason  and  misdemeanors  all  concerned  are  prin- 
cipals, no  distinction  being  made.  Most  of  the 
Continental  systems  make  a  distinction  between  the 
principal  and  the  accessory  or  accomplice  and  when 
this  distinction  is  made  the  accomplice  is  as  a  rule 
punished  less  severely  than  the  principal.  The  clas- 
sical reason  for  making  this  distinction  was  formu- 
lated by  Beccaria  as  follows:  "When  several  men 
unite  themselves  to  face  a  common  peril,  the  greater 
this  peril  the  more  they  will  endeavor  to  make  it 
equal  for  all;  the  more  difficult  therefore  it  will 
become  for  them  to  find  one  among  them  who  is 
willing  to  arm  himself  to  consummate  the  crime, 
when  this  one  will  find  himself  running  a  danger 
more  imminent  and  more  terrible ;  this  rule  would 
suffer  exception  only  in  the  case  where  some  rec- 
ompense proposed  to  the  executor  of  the  crime 
would  have  balanced  the  difference  of  the  crime 
to  which  he  was  exposing  himself  and  then  the 

lOp.  tit.  p.  478. 

205 


CRIMINAL    PROCEDURE 

penalty  would  have  to  be  equal."1  The  inequality  in 
the  risk  run  would  tend  to  cause  lack  of  harmony 
among  the  conspirators  and  thus  lessen  their  effec- 
tiveness as  criminals.  This  theory  of  complicity 
is  similar  to  the  objective  ^eory  of  the  attempt. 
An  accomplice  is  considered  less  guilty  than  the 
principal  because  he  has  done  less,  without  any  re- 
gard to  what  his  intentions  were.  The  principal 
exception  to  this  theory  is  that  of  the  French  penal 
code  which  with  the  exception  of  a  few  cases  in- 
flicts the  same  penalty  on  the  accomplice  as  on  the 
(principal.  In  practise,  however,  as  in  the  case  of 
the  attempt  the  accomplice  is  usually  given  a  lighter 
punishment  by  means  of  the  expedient  of  exten- 
uating circumstances.  The  theory  of  this  code 
may  be  called  the  subjective  theory  since  the  ac- 
complice is  considered  as  guilty  as  the  principal 
because  his  intentions  were  just  as  criminal.  It 
has  not  the  practical  advantage  of  the  other  theory 
suggested  by  Beccaria  but  on  the  other  hand  the 
severity  of  the  punishment  for  complicity  tends  to 
discourage  persons  from  becoming  accomplices. 

But  both  of  these  theories  are  unsatisfactory. 
The  first  theory  bases  itself  entirely  on  the  material 
circumstances  of  the  crime  and  ignores  the  char- 
acter of  the  criminal.  The  second  theory  is  sub- 
jective but  is  too  rigid  and  does  not  give  any 
weight  to  the  personal  circumstances  in  each  case. 
The  accomplice  may  be  as  guilty  in  his  intentions 
as  the  principal,  but  is  not  so  necessarily.  He  is 
also  not  necessarily  as  criminal  in  nature  as  the 

1  Crimes  and  Punishments,  Chap.  XXXVII. 
206 


principal  and  therefore  ought  to  be  punished  less 
severely.  "Why  should  the  same  treatment  be  due 
to  the  professional  thief  and  to  the  novice  enticed 
by  him?"1  We  have  not  space  here  to  discuss  the 
different  kinds  of  complicity.  As  in  the  case  of 
the  attempt  a  much  more  flexible  theory  is  needed 
than  is  at  the  base  of  any  penal  code.  The  per- 
sonal circumstances  of  each  individual  case  must 
be  studied  before  the  criminality  of  the  accomplice 
can  be  determined.  The  fact  of  complicity  also 
has  significance  in  determining  the  character  of 
the  principal.  "Since  the  least  formidable  delin- 
quents (occasional  and  by  passion)  have  as  a  con- 
stant psychological  characteristic  (except  in  the 
case  of  a  crowd  which  commits  a  crime  in  a  trans-  , 
port  of  passion)  to  act  alone  and  without  accom- 
plices, while  the  reverse  is  observed  among  the 
most  dangerous  delinquents  (born  and  habitual), 
complicity  must  therefore  constitute  in  itself  alone 
an  aggravating  circumstance,  to  speak  like  the 
classical  theories."2 

Another   important  question   dealt  with  by  the 
penal  law  is  that  of  the  plurality  of  crimes.     Two   \ 
principal  kinds  of  plurality  of  crimes  exist.     The 
simplest  form  is  the  accumulation  of  offenses  be- 
fore a  condemnation  has  taken  place  and  is  usually 
called  reiteration.     The  second  is  a  repetition  of 
crime  after  a  condemnation,  usually  called  recidi- 
vation.     The  tendency  of  modern  penal  legislation    / 
has  been  in  the  first  case  to  punish  only  one  of  the 

1  R.  Garofalo:  Op.  cit.  p.  353. 

2  E.  Ferri :  Op.  cit.  pp.  478-479. 

207 


CRIMINAL    PROCEDURE 

offenses,  usually  the  gravest  one.  In  the  second 
case  recidivation  is  usually  punished  more  severely 
than  the  first  offense.  The  reason  for  thus  dis- 
tinguishing against  recidivation  is  that  a  previous 
condemnation  has  served  as  a  warning  and  there- 
fore the  offense  is  greater  than  in  the  case  of  reiter- 
ation where  there  has  been  no  warning.  But  in 
this  case,  as  we  have  seen  several  times  before,  the 
theory  is  too  narrow  and  simple  and  the  practise 
based  upon  it  too  inflexible.  It  is  true  that  recidi- 
vation is  usually  a  strong  indication  of  criminal 
character,  but  a  person  guilty  of  several  offenses 
who  has  never  been  condemned  before  may  be  as 
criminal  as  a  recidivist  and  many  such  offenders 
are  so.  It  is,  therefore,  necessary  to  determine 
the  criminality  according  to  the  circumstances  of 
each  case  and  adjust  the  penalty  accordingly. 
Furthermore,  it  is  not  merely  a  question  of  aggra- 
vating or  diminishing  the  quantity  of  punishment 
but  also  a  question  of  its  quality.  In  the  case  of 
recidivation  the  reason  why  the  first  penalty  has 
failed  is  not  merely  because  the  criminal  has  not 
heeded  it  but  because  it  was  not  the  right  kind  of 
penalty.  It  is,  therefore,  not  so  much  a  question 
of  aggravating  the  punishment  but  of  changing  its 
character.  "For  the  new  offense  is  the  best  proof 
that  the  first  means  that  has  been  used  has  not  at- 
tained its  object.  I  comprehend  up  to  a  certain 
point  a  second  experiment,  in  increasing  in  a  very 
sensible  manner  the  quantity  of  the  remedy,  but 
what  would  one  say  of  a  doctor,  who,  after  the 
second  failure,  persisted  in  the  same  method,  when 
208 


CRIMINAL    LAW 

he  has  not  yet  experimented  with  the  other  ther- 
apeutic means  counselled  in  this  case  by  science?"1 
It  is  a  rule  of  modern  penal  law  that  augmenta- 
tion of  punishment  after  an  appeal  is  not  possible. 
This  rule  has  been  attacked  on  the  ground  that  it 
violates  the  equilibrium  between  individual  and 
social  rights  in  procedure.2  If  a  condemned  per- 
son enjoys  the  possibility  of  gaining  a  diminution 
of  punishment  or  an  acquittal  after  an  appeal,  he 
should  also  be  forced  to  take  the  risk  of  receiving 
a  severer  penalty.  In  theory  this  is  quite  right. 
There  is  also  a  practical  reason  for  this.  If  such 
a  risk  for  the  appellant  existed  the  number  of 
appeals  based  on  no  reasonable  grounds  would 
greatly  diminish,  thus  increasing  the  effectiveness  of 
punishment  by  making  it  more  prompt  and  sure.3 
Historically,  however,  the  reason  for  this  rule  has*~"\ 
been  to  protect  the  individual  from  being  intimi- 
dated from  appealing  on  account  of  the  danger  of 
receiving  a  much  severer  penalty  as  punishment 
for  having  appealed.  Until  a  very  high  grade  of 
justice  is  administered  in  the  courts  such  a  pro- 
tection is  needed  for  the  individual.  Furthermore 
the  tendency  towards  the  individualization  of  pun- 
ishment and  the  indetermination  of  its  amount 
lessens  the  practical  importance  of  this  change 
since  appeals  will  be  more  for  the  sake  of  acquittal 
or  of  a  change  in  the  kind  of  punishment  than  for 
a  change  in  the  quantity. 

*R.  Garofalo:    Op.  cit.  pp.  357-358. 
2  E.  Ferri :   Op.  cit.  pp.   496-497. 

8  Cf.   C.   Lombroso :   Le   crime,   causes   et   rem&des,   Paris, 
1907,  p.  433. 

14  209 


CRIMINAL    PROCEDURE 

Another  change  which  is  much  less  defensible 
than  the  last  is  that  of  the  revision  of  acquittals. 
It  is  contended  that  if  a  decision  unfavorable  to 
an  accused  can  be  revised  it  should  be  possible  to 
revise  also  a  decision  which  is  favorable  to  him.1 
According  to  the  theory  of  the  equilibrium  between 
individual  and  social  rights  this  change  would  be 
logical.  Furthermore,  it  is  true  that  in  some 
cases  incriminating  evidence  comes  to  light  after 
an  acquittal,  or  an  acquittal  is  the  result  of  false 
testimony  or  a  mistake  in  the  process.  But  in 
order  to  correct  these  errors  it  would  be  necessary 
to  put  all  those  who  have  ever  been  acquitted  in 
constant  danger  of  a  new  trial.  An  acquittal  would 
not  be  the  declaration  of  innocence  it  is  to-day  and 
it  would  be  much  more  difficult  for  the  person 
acquitted  to  regain  his  position  in  society.  It  is, 
therefore,  probable  that  the  social  loss  from  this 
change  would  be  greater  than  the  social  gain. 
Instead  of  making  this  change  it  should  be  possible 
to  use  any  further  evidence  of  guilt  which  arises 
after  acquittal  against  the  acquitted  person  in  case 
he  ever  again  appears  in  a  court  on  a  new  charge. 
This  would  have  most  if  not  all  of  the  advantages 
of  the  proposed  change  with  none  of  its  disad- 
vantages. 

Another  rule  of  penal  law  which  has  been  at- 
tacked is  that  of  the  perscription  of  penal  action 
after  a  certain  length  of  time.  "A  skillful  swindler 
changes  his  name,  he  goes  to  another  city  to  con- 
tinue his  exploits ;  discovered  at  last,  if  five  years 

1  Cf.  E.  Ferri :  Op.  cit.  p.  497. 
2io 


CRIMINAL    LAW 

have  passed  since  his  first  offenses,  it  will  be  pos- 
sible to  prosecute  him  only  for  the  others!  If,  for 
these  last,  there  is  a  lack  of  proof,  he  is  restored  by 
the  law  to  his  noble  industry."1  This  case  is  much 
like  that  of  the  revision  of  acquittals.  Occasion- 
ally the  prescription  of  penal  action  prevents  the 
law  from  catching  a  professional  thief.  But  on 
the  other  hand  it  would  be  a  great  detriment  to 
many  persons  to  be  in  danger  throughout  life  of 
prosecution  for  a  criminal  act  committed  many 
years  before.  People  change  with  time  and  to 
punish  a  person  for  an  act  committed  many  years 
before  is  not  to  punish  the  same  person  who  com- 
mitted the  crime. 

We  have  now  reviewed  most  of  the  fundamental 
principles  of  modern  penal  law.  We  have  found 
that  most  of  them  are  too  rigid  in  character.  They 
treat  a  large  number  of  cases  in  the  same  way,  not- 
withstanding great  variations  in  the  character  of 
the  cases.  This  characteristic  of  penal  law  has 
been  traced  to  ideo-emotional  arrest  or  the  tendency 
of  the  mind  to  reduce  to  a  minimum  the  number  of 
mental  associations  necessary  for  a  piece  of  work. 
"Thus  the  absolutism  of  the  deductive  method  in 
juridical  science  is  a  sign  of  decrepitude,  and  the 
law  of  ideo-emotional  arrest  explains  to  us  why, 
so  often,  the  law  of  barbarous  or  very  unciv- 
ilized peoples  is  distinguished  by  a  certain  realism 
full  of  good  sense,  in  comparison  to  the  logical  sub- 
tleties wonderful,  but  absurd,  of  the  law  of  most  of 

1  R.  Garofalo :  Op.  cit.  p.  398. 
211 


CRIMINAL    PROCEDURE 

the  civilized  peoples."1    The  judge  is  thus  provided 

by  means  of  deductive  logic  with  a  legal  criterion 

to  be  applied  in  each  case.     But  what  is  needed  is 

5  a  personal  criterion  for  each  case.     The  law  must 

j  permit  of  the  individualization  of  treatment.     To 

I  do  this  each  principle  must  be  so  flexible  as  to  be 

/  applicable  in  accordance  with  the  personal  factors 

[    in  each  case. 

What  then  must  be  done  to  bring  about  this 
change?  In  the  first  place,  as  we  have  several 
times  contended,  moral  responsibility  should  be 
abolished  as  a  fundamental  criterion  of  criminality 
and  should  be  replaced  by  the  dangerousness  of 
the  criminal  to  society.  The  responsibility  and  in- 
tention of  the  criminal  will  then  become  indications 
of  his  character.  But  so  long  as  the  hypothesis  of 
moral  liberty  remains  at  the  base  of  penal  law  it 
will  be  deductive  in  character.  With  the  danger- 
ousness of  the  criminal  as  a  criterion  the  general 
principles  of  penal  law  can  be  developed.  These 
principles  will  be  based  upon  the  sciences  which 
throw  light  upon  the  character  of  the  criminal  and 
upon  the  data  and  statistics  concerning  crime  and 
the  criminal.  They  will,  however,  necessarily  be 
very  general  in  their  character  so  as  to  permit  of 
individualization.  This  will  result  in  limiting  the 
practical  scope  of  penal  law.  On  the  other  hand, 
as  we  have  already  indicated,  the  scope  of  proced- 
ure will  be  increased  because  the  application  of 
the  law  in  each  case  will  be  determined  by  proced- 
ure. 

1  G.  Ferrero :  Les  lois  psychologiques  du  symbolisme,  Paris, 
1894. 

212 


CRIMINAL    LAW 

It  may  seem  as  if  this  change  would  make  the 
penal  law  unstable  and  uncertain,  but  this  is  not 
necessarily  so.  It  would  be  as  certain  as  before 
and  its  authority  would  be  as  unquestionable  as 
ever.  But  the  tendency  would  be  for  the  number 
of  laws  to  greatly  diminish  inasmuch  as  the  funda- 
mental principles  would  be  very  general,  the  details 
being  left  to  procedure.  This  would  result  in  a 
simplification  of  the  law  which  is  one  of  the  great 
preventives  of  crime.  "Do  you  want  to  prevent 
crimes?  Make  the  laws  clear,  simple  and  of  such  a 
nature  that  all  the  society  that  they  govern  will  unite 
its  forces  to  defend  them,  so  that  one  will  not 
see  one  part  of  the  nation  occupied  in  sapping 
them  down  to  their  foundations."1  With  the  laws 
thus  simplified  the  axiom  that  ignorance  of  the  law 
is  no  excuse  would  become  a  practical  working 
principle  which  it  is  not  now.  Furthermore,  many 
frauds  would  be  prevented  on  innocent  people  who 
cannot  know  the  law  as  it  now  exists.2  The  knowl- 
edge of  the  law  is  spread  among  the  public  by  its 
codification  so  that  it  can  be  easily  read  by  all. 

Before  ending  this  chapter  we  must  discuss  the 
penal  code  and  its  relation  to  procedure.  In  the 
majority  of  existing  penal  codes  crimes  are  clas- 
sified according  to  the  punishment  inflicted.  In 
the  common  law,  with  the  exception  of  treason 
which  stood  in  a  class  by  itself,  crimes  were  divided 
into  felonies  and  misdemeanors.  Felonies  were 
those  crimes  which  resulted  in  the  forfeiture  of 

1 C.  Becarria :    Crimes  and  Punishments,  Chap.  XLI. 
a  Cf.  E.  Ferri :  Op.  cit.  p.  296. 
213 


CRIMINAL    PROCEDURE 

the  criminal's  estate.  Misdemeanors  were  the 
crimes  punished  less  severely.  These  terms  are 
still  used  in  Anglo-American  penal  codes  and  they 
are  still  based  on  distinctions  of  punishment  though 
not  on  the  same  ones  as  in  the  common  law,  as,  for 
example,  in  the  New  York  penal  code  in  which 
felonies  are  those  crimes  whose  maximum  penalty 
is  more  than  one  year's  imprisonment  and  five 
hundred  dollars'  fine. 

In  the  French  penal  code  offenses  are  divided 
into  three  classes;  crimes,  misdemeanors,  and  tres- 
passes (crimes,  delits,  et  contraventions*)  according 
to  the  penalty  prescribed  by  the  law.1  Crimes 
(crimes},  which  are  the  most  serious  offenses,  are 
punishable  by  death,  penal  servitude,  transporta- 
tion, military  imprisonment,  solitary  confinement, 
banishment  or  civil  degradation.  Misdemeanors 
(delits},  which  are  less  serious,  are  punishable  by 
imprisonment  for  over  five  days,  fine  of  over 
fifteen  francs,  or  deprivation  of  the  exercise  of 
certain  civil  and  family  rights.  Trespasses  (con- 
traventions'], the  least  serious  offenses,  are  pun- 
ishable by  imprisonment  from  one  to  five  days  or 
by  a  fine  of  from  one  to  fifteen  francs.  This  clas- 
sification has  been  adopted  by  the  majority  of  the 
Continental  codes,  as  for  example,  by  the  German 
code  of  1870  and  was  retained  in  the  Belgian  code 
pf  1867. 

It  is  evident  that  such  classifications  of  offenses 
are  very  objective  in  their  character.  The  penalties 

lCf.  E.  Jarno  in  The  Penal  Codes  of  France,  Germany, 
Belgium  and  Japan,  edited  by  Samuel  J.  Barrows,  Washing- 
ton, 1901,  pp.  15-17. 

214 


CRIMINAL    LAW 

are  adjusted  according  to  the  gravity  of  the  crimes 
from  the  social  standpoint.  It  is  true  that  the 
gravity  of  the  crimes  do  correspond  to  a  certain 
extent  to  the  criminality  of  the  criminals.  But 
this  is  not  always  the  case.  Furthermore,  a  very 
slight  difference  in  an  offense  will  change  it  from 
one  class  to  another  thus  causing  a  very  great 
change  in  its  punishment.  There  has,  therefore,  *- 
been  a  feeling  that  offenses  should  be  classified 
more  according  to  the  characteristics  which  reveal 
the  character  of  the  criminal.  This  feeling  has 
had  some  influence  on  recent  legislation.  It  has.  -' 
resulted  in  a  bipartite  classification  of  offenses 
which  was  adopted  by  the  Dutch  code  of  1881  and 
the  Italian  code  of  1889.  According  to  this  clas- 
sification, offenses  are  divided  into  misdemeanors 
and  trespasses  (delits  et  contraventions').  Mis- 
demeanors are  offenses  of  every  degree  of  gravity 
which  are  intentional  and  intrinsically  immoral. 
Trespasses  are  unintentional  offenses.  In  1894  the 
Martineau  Bill  was  introduced  into  the  French 
Chamber  of  Deputies,  the  intention  of  which  was 
to  classify  offenses  according  to  the  state  of  mind 
of  the  criminals  when  committing  them.  Accord- 
ing to  this  bill  the  penal  code  would  describe  the 
actions  which  are  criminal  without  attaching  any_^ 
penalties  to  them.  There  were  to  be  eight  degrees 
of  guilt  with  a  penalty  attached  to  each.  The  jury 
was  to  specify  the  degree  of  guilt  and  the  judge  J 
was  to  apply  the  corresponding  penalty. 

The   bipartite   classification    and   the    Martineau 
Bill  tend  in  the  right  direction  but  neither  of  them 
215 


CRIMINAL    PROCEDURE 

provide  for  a  thorough-going  individualization  of 
f*  punishment.  What  sort  of  a  penal  code  then  would 
\  make  such  individualization  possible?  In  the  first 
\  place  it  is  evident  that  the  code  must  specify  what 
actions  are  criminal  in  order  to  fix  penal  respon- 
'  sibility.  But  to  do  this  it  is  not  necessary,  when 
the  right  violated  is  the  same,  that  fine  distinctions 
should  be  drawn  between  criminal  acts  on  the  basis 
of  differences  in  the  manner  of  performing  them. 
The  reason  for  these  fine  distinctions  is  that  to-day 
punishment  is  determined  by  the  manner  of  violating 
a  right.  But  when  punishment  will  be  determined 
by  the  nature  of  the  criminal  the  only  question 
of  importance  will  be  whether  a  right  has  been 
violated  and  not  the  exact  manner  in  which  it  was 
violated.  The  penal  code  would  thus  become  much 
more  subjective  in  its  character.  Its  only  object 
would  be  to  designate  those  who  are  criminals  by 
specifying  certain  classes  of  acts  which  as  viola- 
tions of  certain  rights  are  criminal.  But  the  penal- 
ties would  be  determined  according  to  these  acts 
only  to  the  extent  that  they  reveal  the  character  of 
the  criminals.  The  judges  and  the  penal  adminis- 
tration  would  determine  the  penalties  as  has  been 
indicated  in  the  chapter  on  the  individualization  of 
punishment.  The  only  cases  where  it  would  be 
necessary  to  indicate  in  great  detail  the  manner  of 
performing  a  crime  would  be  when  an  act  is  on  the 
border  line  between  the  violation  and  the  non-viola- 
tion of  a  right  in  order  that  no  question  can  be 
raised  about  its  criminality  or  non-criminality. 
Such  certainty  is  all-important  in  a  penal  code. 
216 


CRIMINAL    LAW 

Such  a  penal  code  would  be  a  much  more  effec- 
tive weapon  of  social  defense  against  crime  than 
existing  codes.  When  the  penalty  for  a  crime  is 
fixed  beforehand,  the  criminal  is  able  to  calculate 
the  risk  and  to  determine  whether  it  is  worth  while 
to  commit  a  certain  crime  just  as  a  business  man 
determines  whether  it  is  worth  while  to  undertake 
a  certain  venture.  Von  Liszt  has  summed  up  the 
case  for  the  penal  code  of  to-day  as  follows:  "So 
paradoxical  as  it  may  be,  a  penal  code  is  the  Magna 
Charta  of  the  criminal.  It  protects  neither  the  legal 
order  nor  society,  but  above  all  the  individual  who 
puts  himself  in  revolt  against  them.  It  assures  the 
right  to  be  punished  only  within  legal  conditions 
and  limits."  It  is  curious  to  note  how  this  very 
idea  that  a  person  should  be  able  to  calculate 
the  results  of  his  evil  act  has  prevailed  in  the  past. 
For  example,  Beccaria  has  put  it  as  follows:  "With 
penal  laws  literally  executed,  the  citizen  will  live 
tranquilly  under  the  protection  of  public  security; 
he  will  enjoy  the  fruit  of  the  union  of  men  in  so- 
ciety, which  is  right ;  he  will  be  able  to  calculate 
precisely  the  inconveniences  of  a  bad  act,  which  is 
useful."1  But  this  shows  an  inadequate  concep- 
tion of  social  defense  which  cannot  be  effectively 
practised  if  punishment  cannot  be  determined  by 
the  character  of  the  criminal.  This  does  not  neces- 
sitate a  violation  of  the  individual  rights  of  crim- 
inals. On  the  contrary,  with  a  code  such  as  we 
have  described,  the  occasional  criminals  would  en- 
dure much  less  punishment  than  under  a  code  of 

1C.  Beccaria:  Op.  Cit.  Chap.  IV. 

217 


CRIMINAL    PROCEDURE 

fixed  penalties.  Thus  crime  would  no  longer  be  re- 
garded as  a  juridical  abstraction  but  as  human  action, 
as  a  natural  and  social  phenomenon  and  would  be 
treated  as  such. 

We  now  see  the  significance  of  the  data  and 
inductions  of  criminal  anthropology  and  sociology 
for  the  fundamental  principles  of  criminal  law.  It 
is  essential  that  these  principles  of  law  should  be 
studied  in  the  light  of  these  two  sciences  in  order 
that  criminal  law  shall  furnish  a  satisfactory  theo- 
retic basis  for  the  practical  treatment  of  the  criminal 
in  procedure  and  in  the  penal  system  in  accordance 
with  the  principles  of  these  sciences. 


218 


CHAPTER  VI 
THE  SYSTEMS  OF  CRIMINAL  PROCEDURE 

We  now  come  to  the  study  of  the  principal  sys- 
tems of  criminal  procedure.  The  introduction  to 
this  study  has  been  rather  long  but  it  was  necessary 
to  review  the  great  forces,  scientific  and  social, 
which  are  changing  the  methods  of  procedure  to- 
day and  which  will  change  them  still  more  in  the 
future.  The  remainder  of  this  work  will  be  de- 
voted to  a  consideration  of  what  these  changes  are 
and,  as  far  as  possible,  of  what  they  will  be. 

The  functions  of  criminal  procedure  are  two,  the 
one  positive,  the  other  negative.  Its  positive  func- 
tion is  to  apprehend  every  criminal,  its  negative 
function  is  to  prevent  the  prosecution  or  condem- 
nation of  any  innocent  person.  The  ideal  pro- 
cedure, therefore,  would  be  too  firm  to  permit  the 
escape  of  a  single  criminal  and  yet  sufficiently 
flexible  to  prevent  the  prosecution  and  especially 
the  condemnation  of  any  innocent  person.  But  to 
devise  such  a  procedure  is  not  possible.  Strictly 
speaking,  nothing  can  be  proved  absolutely,  while 
in  many  cases  the  evidence  can  not  make  a  decision 
more  than  probable.  Furthermore,  the  situation  is 
greatly  complicated  by  the  opposition  of  social  and 
219 


CRIMINAL    PROCEDURE 

individual  interests  in  procedure.  It  is  always  diffi- 
cult to  preserve  the  balance  between  the  rights  of 
the  individual  and  of  society,  but  perhaps  nowhere 
more  so  than  in  criminal  procedure.  Social  defense 
requires  strict  measures  of  investigation  and  prose- 
cution which  may  sometimes  result  in  the  prosecu- 
tion of  an  innocent  person.  On  the  other  hand, 
individual  liberty  must  be  defended  and  conserved. 
The  condemnation  of  an  innocent  person  when  dis- 
covered is  a  great  shock  to  public  sentiment  not 
only  as  a  violation  of  justice  but  also  because  each 
imagines  himself  or  herself  in  the  place  of  the  vic- 
tim and  realizes  in  what  jeopardy  everyone  is 
placed  when  such  judicial  errors  are  possible. 
Therefore,  whereas  we  cannot  hope  to  devise  a 
perfect  system,  we  must  develop  one  in  which  the 
possibility  of  error  will  be  reduced  to  a  minimum. 
The  first  task  of  procedure  is  to  prove  that  a 
crime  has  been  committed.  To  do  this  the  com- 
mission of  a  certain  act  or  the  existence  of  a  cer- 
tain state  of  facts  must  be  proved.  In  the  second 
place  the  imputability  of  this  crime  to  a  certain 
person  must  be  proved.  This  requires  proof  not 
only  of  physical  imputability  but  also  that  the  per- 
son to  whom  the  crime  is  imputed  was  not  coerced 
from  without  when  he  committed  it  so  that  it  may 
be  regarded  as  an  expression  of  his  character. 
These  two  things  are  usually  proved  at  the  same 
time,  but  it  is  evident  that  the  second  cannot  be 
proved  if  the  first  is  not  proved.  When  someone 
has  been  found  guilty  the  third  task  of  procedure 
220 


SYSTEMS   OF   CRIMINAL    PROCEDURE  ^ 

is  to  determine  what  treatment  is  to  be  given  to  the 
criminal. 

The  principal  types  of  procedure  are  the  proced- 
ure of  accusation  and  the  procedure  of  investigation. 
Upon  these  two  types  of  procedure  are  based  exist- 
ing systems  of  procedure.  We  shall  now  study 
these  procedures  from  a  positive  point  of  view  in 
order  to  determine  the  positive  value  of  each  sys- 
tem. 

The  procedure  of  accusation  is  in  all  probability 
the  older  of  the  two  forms  of  procedure.  This 
form  developed  out  of  private  vengeance  inflicted 
by  one  individual  upon  another  for  a  wrong  suf- 
fered. Such  acts  of  vengeance  created  a  state  of 
private  war  between  individuals.  It  is  not  possible 
here  to  relate  in  detail  the  evolution  from  this  state 
to  a  form  of  legal  procedure.  Suffice  it  to  say  that 
the  legal  duel  was  established  in  which  individuals 
fought  out  their  grievances  according  to  certain 
rules.  "The  duel  is  the  primitive  form  of  penal 
law ;  the  idea  of  sanction  and  of  reprobation  was 
as  completely  foreign  to  this  original  form  of  penal 
law  as  it  still  is  among  us  in  duelling  matters,  what- 
ever may  be  the  unworthiness  of  the  aggressor  or 
the  criminality,  if  not  legal,  at  least  social,  of  the 
deed  which  was  the  cause  of  the  combat."1  But 
as  social  and  political  conditions  grew  more  stable 
it  became  very  detrimental  to  have  this  private  war 
constantly  going  on.  Consequently  the  procedure 
of  accusation  was  developed  to  satisfy  private 

*R.  Saleilles:  L'individualisation  de  la  peine,  Paris,  1898, 
P-  23- 

221 


CRIMINAL    PROCEDURE 

grievances  by  peaceful  legal  means.  But  long 
after  the  great  mass  of  the  people  was  required  to 
settle  its  grievances  by  means  of  this  procedure, 
the  upper  classes  retained  the  privilege  of  the  duel 
as  among  the  feudal  lords  who  settled  their  diffi- 
culties by  means  of  private  war  and  almost  down 
to  our  day  the  duel  has  not  been  considered  illegal 
in  certain  cases. 

We  have  not  space  here  to  consider  all  the  forces 
which  acted  upon  the  development  of  the  procedure 
of  accusation.  This  form  of  procedure  has  not 
necessarily  existed  at  any  one  time  in  a  complete 
and  pure  state.  But  it  is  probable  that  all  systems 
of  procedure  were  originally  accusatory  and  some 
of  the  existing  systems  are  still  based  upon  it. 

The  fundamental  theory  of  the  procedure  of  ac- 
cusation is  that  the  trial  is  a  combat  between  two 
individuals  like  its  predecessor,  the  duel.  It  is  only 
a  legal  means  of  securing  vengeance.  This  is  in- 
\  dicated  by  the  early  forms  of  punishment,  such  as 
'  composition,  wergeld,  etc.  It  is  not  until  later  that 
punishment  is  inflicted  for  the  injury  done  to  society. 
The  only  interest  of  society  at  first  is  that  the  dis- 
pute shall  be  decided  and  reparation  gained  by 
peaceful  means.  Therefore,  the  king  or  a  judge 
as  a  representative  of  society  acts  as  an  arbiter  be- 
tween the  opposing  parties.  It  is  evident  that  the 
accusation  must  be  made  by  a  private  person,  the 
injured  party  or  "those  of  his  lineage."  The  judge 
cannot  start  a  process  himself.  It  is  a  principle 
of  this  form  of  procedure  that  there  can  be  no 
process  without  an  accuser.  The  examination  into 
222 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

the  facts  of  a  case,  as  developed  by  this  form  of 
procedure,  is  public,  oral  and  contradictory  in  order 
to  give  each  party  an  equal  opportunity  to  state  its 
case. 

This  is  the  procedure  of  accusation  in  its  original, 
pure  form.  But  as  the  social  importance  of  penal 
procedure  increased,  the  procedure  of  accusation 
began  to  vary  from  its  original  form  which  was 
designed  for  the  decision  of  private  disputes. 
When  crimes  came  to  be  regarded  as  injurious  to 
society,  as  well  as  to  the  individuals  against  whom 
they  were  committed,  it  became  essential  that  all 
criminals  should  be  prosecuted.  But  there  was 
danger  of  impunity  to  many  criminals  under  the 
procedure  of  accusation  on  account  of  apathy  on 
the  part  of  the  accusers.  In  order  to  start  a  process 
against  a  criminal,  it  was  necessary  that  the  injured 
party  should  make  an  accusation.  If  this  accusa- 
tion was  not  made,  the  criminal  went  unpunished. 
To  remedy  this  the  popular  accusation  was  de- 
veloped according  to  which  any  person  can  bring 
an  accusation  for  crime  committed,  even  if  he  is 
not  the  injured  party.  Laws  have  also  been  passed 
prohibiting  the  compounding  of  crime  which  is  a 
transaction  for  the  suppression  of  criminal  pursuit 
and  the  stopping  of  a  process  already  commenced, 
except  with  the  consent  of  the  court.  But  even 
these  measures  have  not  proved  sufficient  and  as  we 
shall  see  later  existing  systems  based  upon  the  pro- 
cedure of  accusation  have  been  forced  to  adopt 
public  prosecution  which  is  characteristic  of  the 
procedure  of  investigation. 
223 


CRIMINAL    PROCEDURE 

Another  danger  of  the  procedure  of  accusation 
is  that  it  will  be  used  for  evil  purposes.  It  may  be 
used  for  the  extortion  of  blackmail,  or  for  the  sat- 
isfaction of  personal  hatred  where  no  grievance 
exists,  or  for  the  satisfaction  of  fancied  grievances. 
Measures  have  been  taken  against  this  danger  such 
as  the  severe  punishment  of  blackmail,  the  possi- 
bility of  bringing  a  civil  suit  for  damages  in  case 
of  prosecution  upon  no  reasonable  basis  of  facts. 
But  even  with  these  measures  some  sort  of  super- 
vision over  the  prosecution  is  needed  and  has  been 
introduced  into  most  systems. 

The  examination  in  the  procedure  of  accusation 
has  certain  faults.  Its  publicity  frequently  en- 
ables the  accused  to  destroy  incriminating  evidence. 
The  power  of  the  accused  not  to  testify  if  he  so 
chooses  deprives  the  court  of  one  valuable  source 
of  information.  This  silence  of  the  accused  usu- 
ally deprives  society  of  a  powerful  weapon  against 
crime,  though  sometimes  it  does  injury  to  the  ac- 
cused himself,  especially  when  he  is  innocent. 

•The  procedure  of  accusation  is  on  the  whole  the 
best  fitted  for  reaching  a  decision,  though  the  value 
of  this  characteristic  may  in  some  respects  be 
questioned  from  the  positive  point  of  view.  The 
principal  object  of  the  procedure  of  accusation  as 
it  exists  to-day  is  to  safeguard  individual  liberty 
and  in  theory  it  offers  the  maximum  of  guarantees 
to  the  accused,  though  it  does  not  always  do  so  in 
practise.  But  we  will  not  discuss  further  these 
and  the  other  characteristics  of  this  -form  of  pro- 
cedure until  we  have  described  the  procedure  of 
224 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

investigation,  after  which  in  the  course  of  a  study 
of  the  existing  systems  we  can  estimate  the  positive 
value  of  these  two  forms  of  procedure. 

The  procedure  of  investigation  or  inquisitorial 
procedure  seems  to  have  originated  in  the  Roman 
law  into  which  it  was  introduced  during  the  latter 
part  of  its  history.  However,  the  question  of  its 
origin  is  of  little  importance  in  this  connection. 
What  is  of  great  practical  importance  is  that  it  was 
adopted  by  the  Catholic  Church  and  developed  in 
the  canonical  law.  In  the  Middle  Ages  the  Church 
had  a  great  deal  of  power  and  many  crimes  were 
prosecuted  in  the  ecclesiastical  courts.  Sometimes 
crimes  were  prosecuted  by  the  bishops  who  acted 
as  judges  when  no  complaint  had  been  brought  be- 
fore them.  This  increased  greatly  the  power  of 
the  Church,  so  that  in  course  of  time  it  became  the 
regular  procedure.  Under  the  Inquisition  it  was 
very  useful  for  prosecuting  heretics  and  forcing 
confessions  from  them.  After  receiving  this  great 
extension  in  the  ecclesiastical  courts  it  began  to 
be  adopted  by  the  secular  law.  In  France,  it  was 
introduced  into  the  penal  system  by  means  of  royal 
ordinances  such  as  those  of  1498,  1539  and  a 
famous  one  on  criminal  procedure  in  1670?  In 
the  Constitutio  Criminal-is  Carolina,  a  criminal  code 
adopted  in  Germany  under  Charles  V,  in  1532,  it 
was  recognized  as  the  usual  procedure.2  Thus  it 

1  A.  Le  Poittevin :  in  The  Penal  Codes  of  France,  Germany, 
Belgium,   and   Japan,   edited   by    S.   J.    Barrows,    Washington, 
1901,   p.  44. 

2  W.  Mittermaier :  in  The  Penal  Codes  of  France,  Germany, 
Belgium    and   Japan,    edited   by    S.   J.    Barrows,    Washington, 
1901,  p.  105. 

15  22S 


replaced  the  procedure  of  accusation  on  the  Con- 

itinent  and  remained  in  practise  until  the  French 
Revolution,  when  it  underwent  great  changes. 
The  procedure  of  investigation,  like  that  of  ac- 
cusation, may  never  have  existed  in  its  pure  form, 
but  we  can  easily  distinguish  its  principal  features 
as  a  type.  The  fundamental  theory  of  this  form 
of  procedure  is  that  the  pursuit  and  punishment  of 
criminals  is  of  great  interest  to  society.  Conse- 
quently, society  has  the  right  to  commence  a  crim- 
V^inal  process.  This  it  may  do,  not  necessarily  by 
accusing  some  one  of  crime,  but  by  making  an  in- 
vestigation to  determine  whether  a  crime  has  been 
committed  or  whether  a  certain  person  has  com- 
mitted a  crime.  Therefore  the  judge,  acting  not 
as  an  arbiter  between  two  parties,  but  as  the  repre- 
sentative oi  society,  commences  such  an  investiga- 
tion, and  if  he  finds  incriminating  evidence  he 
prosecutes  the  suspected  person.  His  decision 
need  not  be  based  only  on  the  evidence  brought  be- 
fore him  by  the  accuser,  if  there  be  one,  and  by  the 
prisoner,  but  he  may  collect  evidence  himself. 
Theoretically,  his  position  is  as  impartial  as  in  the 
procedure  of  accusation.  But  as  frequently  there 
is  no  accuser,  and  as  he  has  to  conduct  the  prose- 
cution the  tendency  is  for  the  judge  in  the  pro- 
cedure of  investigation  to  become  biased  against 
the  prisoner.  The  examination  is  considerably 
different  from  the  procedure  of  accusation.  It  is 
.secret,  written  and  uncontradictory.  The  process 
is  no  longer  one  between  two  personal  adversaries. 
It  is  the  trial  of  the  prisoner  before  a  judge  who 
226 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

is  impartial  but  who  represents  society,  which  is  f 
the  great  opponent  of  the  prisoner  if  it  is  proved  \ 
that  he  is  guilty.  The  process  is  not  contradictory 
because  no  opposing  parties  appear  in  the  course 
of  it.  It  is  secret  because  it  is  in  theory  only  an 
inquiry  conducted  by  the  representative  of  society 
and  this  inquiry  can  be  all  the  more  searching  if 
made  in  secret.  It  is  written  also  because  it  is  an 
inquiry,  the  only  object  being  to  gather  as  much 
evidence  as  possible  and  to  have  it  on  record  as  a 
basis  for  judgment. 

It  is  evident  that  the  procedure  of  investigation 
is  a  great  power  in  the  hands  of  the  central  govern- 
ment. The  government  is,  of  course,  expected  to 
use  this  power  in  the  service  of  justice.  But  the 
danger  always  exists  of  its  being  used  as  a  political 
weapon.  Furthermore,  it  is  dangerous  to  put  the 
power  of  prosecution  and  that  of  judgment  in  the 
same  hands.  Strictly  speaking,  there  is  no  such 
thing  as  prosecution  in  the  procedure  of  investiga- 
tion, the  process  being  only  an  inquiry  into  the 
facts.  But  inasmuch  as  social  interests  are  at- 
stake  and  society  is,  in  a  sense,  the  opponent  of  the 
prisoner,  the  judge,  as  the  representative  of  society, 
becomes  a  prosecutor.  This  tends  to  bias  him 
against  the  prisoner  and  thus  unfits  him  for  judg- 
ing. 

The  examination  in  the  procedure  of  investigation 
has  certain  faults.  The  powers  of  the  judge  in  ac- 
cepting and  rejecting  evidence  are  very  arbitrary. 
If  he  begins  his  examination  with  a  prejudice  in 
favor  of  one  side,  he  is  likely  to  find  the  evidence 
227 


CRIMINAL    PROCEDURE 

in  favor  of  that  side  and  to  ignore  the  other.  In 
fact,  judicial  functions  are  hardly  compatible  with 
an  active  investigation.  In  order  that  all  the  evi- 
dence in  favor  of  a  side  be  brought  to  light  it 
should  be  gathered  and  presented  by  some  one  in- 
terested in  that  side.  It  is  hardly  possible  for  one 
person  to  present  all  the  evidence  on  both  sides. 
And  while  gathering  the  evidence  he  is  likely  to 
become  biased  in  favor  of  one  or  the  other  side.  In 
order  to  arrive  at  the  best  possible  decision,  the 
judge  should  come  with  a  fresh  and  unbiased  mind 
to  a  consideration  of  the  evidence  after  it  has 
been  carefully  prepared  by  others,  and  should  re- 
main in  a  passive  state  while  it  is  being  presented 
to  him. 

The—secrecy  and  lack  of  contradiction  tend  to 
limit  the  power  of  the  prisoner  to  defend  himself. 
His  inability  to  contradict  prevents  him  from  ex- 
plaining and  replying  directly  to  evidence  offered 
against  him  while  its  impression  upon  the  mind  of 
the  judge  is  still  fresh.  Still  more  is  he  hampered 
by  the  secrecy  of  the  examination,  which  frequently 
prevents  him  from  knowing  what  evidence  has 
been  found,  so  as  to  reply  to  it  when  he  is  given 
...the  opportunity  to  testify. 

The  principal  object  of  the  procedure  of  investi- 
gation is  to  defend  the  interests  of  society.  This 
is  quite  in  accordance  with  our  theory  of  social  de- 
fense. But  in  practise  it  tends  to  discriminate 
against  the  prisoner  and  thus  violates  the  rights  of 
the  individual.  We  shall  now  study  the  existing 
systems  of  procedure  in  whose  history  and  present 
228 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

forms  we  shall  see  how  these  two  types  of  procedure 
have  modified  each  other  and  shall  be  better  able 
to  judge  them  from  the  positive  point  of  view. 

The  principal  example  of  the  procedure  of  ac- 
cusation is  the  English  system  of  procedure,  though 
it  has  varied  greatly  from  the  original  form  of  pro- 
cedure. In  theory,  at  least,  the  prosecution  is 
private  but  it  is  now  done  in  the  name  of  the  king, 
which  is  a  recognition  of  the  interests  of  society 
in  the  prosecution  and,  as  we  shall  see,  in  practise 
there  is  a  great  deal  of  public  prosecution.  The 
trial  is  conducted  by  the  two  opposing  parties  and 
is  public,  oral  and  contradictory.  The  judge  acts 
only  as  an  arbiter,  intervening  only  when  questions 
arise  as  to  how  the  process  is  to  be  carried  on. 
Out  of  the  decisions  of  judges  regarding  evidence 
has  grown  the  English  law  of  evidence,  which  is 
the  most  complete  body  of  rules  with  regard  to 
evidence  in  any  system  of  law.  The  decision  re- 
garding guilt  is  made  by  a  jury,  which  is  an  insti- 
tution developed  by  the  procedure  of  accusation. 
Its  underlying  theory  is  that  a  man  is  to  be  judged 
by  his  peers  and  it  is  a  safeguard  against  the  judges 
who,  as  representatives  of  the  government,  may 
prosecute  and  condemn  in  the  interests  of  society.. 

The  leading  example  of  the  procedure  of  investi- 
gation is  the  French  procedure  which,  since  the 
French  Revolution,  has  more  or  less  influenced 
every  Continental  system  of  procedure.  In  France 
the  prosecuting  is  done  by  a  body  of  public  officials 
called  the  ministere  publique.  The  accused  is  ex- 
amined by  a  magistrate  called  the  juge  d'instructinr. 
229 


CRIMINAL    PROCEDURE 

T«his  examination  is  almost  entirely  secret,  only  the 
counsel  for  the  prisoner  being  present.  It  is  ab- 
solutely uncontradictory  and  a  written  record  is 
made.  The  functions  of  the  juge  d'instruction 
«re  a  survival  of  the  Inquisition  and  his  position 
is  much  like  that  of  the  Grand  Inquisitor.  The 
record  of  this  examination  in  the  form  of  deposi- 
tions of  witnesses  is  sent  to  the  judge  who  is  to 
preside  at  the  trial  who  reads  them  over.  This 
frequently  tends  to  develop  a  hostile  attitude  on  his 
part  against  the  prisoner.  The  presentation  of 
evidence  in  the  trial  is  oral  and  public.  But  it  is 
almost  entirely  uncontradictory  since  the  question- 
ing of  witnesses  is  done  by  the  judge  and  there  is 
no  cross  examination.  The  rules  of  evidence  are 
very  few  and  elementary,  so  that  the  judge  is  quite 
independent  in  the  examination  of  witnesses. 
The  principal  contradictory  feature  in  the  trial  is 
furnished  by  the  speeches  of  the  procureur  de  la 
Republique  or  public  prosecutor  and  the  counsel 
for  the  defense,  after  the  examination  of  witnesses. 
After  the  French  Revolution  the  jury  was  intro- 
duced into  the  procedure  and  was  a  modification 
tending  towards  the  procedure  of  accusation. 

In  the  succeeding  chapters  each  of  the  different 
stages  of  procedure  will  be  taken  up  and  studied  in 
detail,  and  a  comparative  study,  will  be  made  of 
the  methods  used  in  different  systems  of  procedure. 
In  the  present  chapter  only  a  brief  description  of 
the  two  principal  forms  of  procedure  is  being 
given  and  a  study  of  their  value  as  a  whole  is  being 
made  from  the  positive  point  of  view. 
230 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

The  procedure  of  accusation  is  based  on  the 
primitive  theory  of  personal  vengeance.  The 
underlying  theory  of  the  procedure  of  investigation 
is  much  more  advanced,  showing  a  higher  concep- 
tion of  the  function  of  penal  procedure.  It  is  evi- 
dent that  it  is  much  more  in  harmony  with  our 
positive  theory  of  the  social  defense.  But  in  prac- 
tise it  has  tended  in  certain  respects  to  violate  in- 
dividual rights  and  therefore  needs  modification. 
As  we  have  seen  in  the  chapter  on  society  and  the 
criminal  such  violation  of  individual  rights  is  in- 
compatible with  social  interests  as  well,  since  these 
interests  require  that  only  those  acts  should  be  re- 
pressed and  punished  which  are  injurious  to  society 
as  a  whole  and  any  further  repression  is  a  disturb- 
ing factor  in  social  life.  To  correct  this  fault  in 
the  practise  of  the  procedure  of  investigation  it  is 
necessary  to  look  to  the  procedure  of  accusation 
which  offers  a  greater  guarantee  of  protection  to 
individual  rights.  To  devise  the  best  possible  pro- 
cedure, therefore,  we  must  adopt  the  theoretic  basis 
of  the  procedure  of  investigation  and  those  features 
of  both  forms  of  procedure  which  will  put  this 
theory  into  practise.  This  has  been  the  very  ten- 
dency in  existing  systems  of  procedure.  The 
primitive  theory  of  vengeance  as  a  basis  for  penal 
treatment  has  been  dying  out  and  is  being  replaced 
by  that  of  social  defense,  while  the  systems  based 
on  the  two  forms  of  procedure  have  been  approach- 
ing each  other  in  practise. 

The  procedure  of  accusation  leaves  the  prosecu- 
tion of  criminals  to  the  injured  parties.     But  this 
231 


CRIMINAL    PROCEDURE 

results  in  impunity  for  many  criminals.  Indiffer- 
ence, threats,  money  and  other  reasons  keep  people 
from  accusing  and  prosecuting.  A  first  step  to- 
wards remedying  this  was  the  popular  accusation 
by  means  of  which  every  citizen  could  accuse  any 
other  of  a  crime.  Montesquieu  has  said  that  the 
popular  accusation  is  suited  to  republics  where 
patriotism  is  very  strong,  but  not  to  monarchies 
where  this  sentiment  is  weak.1  But  even  in  repub- 
lics patriotism  could  hardly  be  sufficiently  strong  to 
induce  citizens  to  take  the  time  and  trouble  to  ac- 
:use  and  to  take  the  risk  of  making  a  false  accusa- 
tion. Therefore  a  public  agency  for  the  pursuit 
and  prosecution  of  criminals  is  absolutely  neces- 
sary. We  see  in  the  English  procedure  in  which 
the  prosecution  is  private  in  theory  how  much  of  it 
is  public  in  practise.  The  police  has  become  the 
jreat  prosecuting  agency  in  England.  It  is  evi- 
dent that  if  the  police  should  wait  until  a  private 
citizen  brings  a  charge  in  each  case,  most  criminals 
would  go  unpunished.  Therefore  the  police  prose- 
cute in  theory  as  private  citizens,  but  in  reality  as 
public  officials.  The  "Criminal  Investigation  De- 
partment" is  composed  of  experienced  officers,  who 
devote  themselves  to  the  pursuit  of  crime  and  are 
assisted  in  prosecuting  by  special  advocates.  The 
most  important  cases  they  take  to  the  "Director  of 
Public  Prosecutions"  to  prosecute.  This  official 
also  prosecutes  in  some  cases  of  his  own  accord. 
The  State  departments  prosecute  cases  which  inter- 
est them,  while  certain  philanthropic  organizations 

1 C.  Beccaria :   Crimes   and  Punishments,   Chap.   XV. 
232 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

prosecute  certain  kinds  of  crime  in  a  semi-public 
capacity.  The  county  also  pays  for  the  prosecu- 
tion of  cases  when  other  means  of  prosecution 
fail.  Thus  the  only  cases  left  for  private  prosecu- 
tion are  those  of  a  more  obscure  sort  and  those 
committed  against  the  railroads  and  other  large 
corporations,  which  are  quite  capable  of  prosecut- 
ing them. 

In  the  procedure  of  investigation  there  is  no : 
prosecution,  strictly  speaking.  The  judge  is  simply  . 
conducting  an  inquiry.  But  in  practise  it  is  his  ! 
tendency,  because  he  is  the  representative  of  social 
interests,  to  regard  the  prisoner  as  guilty  and  there- 
fore to  prosecute.  To  remedy  this  official  or  public 
prosecution  was  introduced  into  this  form  of  pro- 
cedure. Public  prosecution  is  a  combination  of  the 
two  forms  of  procedure.  It  is  prosecution  by  a 
person  other  than  the  judge  as  in  the  procedure  of 
accusation,  but  it  is  prosecution  by  a  representa- 
tive of  society  in  its  interests  arid  therefore  harmon- 
izes with  the  theory  of  the  procedure  of  investiga- 
tion. Public  prosecution  brought  with  it  the  con- 
tradictory element,  for  it  necessitated  defense  for  the 
criminal.  Thus  we  see  how  in  the  matter  of  prose- 
cution the  tendency  has  been  towards  the  theory 
of  the  procedure  of  investigation  modified,  however, 
in  practise  by  the  procedure  of  accusation. 

The  preliminary  examination,  as  developed  by 
the  two  forms  of  procedure,  varies  somewhat.  In 
the  French  procedure  it  is  made  by  the  fuge  d'in- 
struction.  Until  recently  it  was  absolutely  secret 
and  uncontradictory,  but  in  1897  the  counsel  for 
233 


CRIMINAL    PROCEDURE 

the  defense  was  given  the  right  to  be  present.  But 
he  has  no  part  in  the  examination  and  as  no  prose- 
cutor is  present  it  is  entirely  uncontradictory.  In 
the  English  and  American  procedure  the  prelim- 
inary examination  is  made  by  the  police  magistrate. 
It  is  public  and  may  be  contradictory  if  representa- 
tives of  the  prosecution  and  defense  are  present. 
This  gives  to  it  the  character  of  a  trial  rather  than 
that  of  an  examination.  This  is  unnecessary,  since 
it  is  not  the  object  of  the  preliminary  examination 
to  reach  a  final  decision,  but  only  to  determine 
whether  there  is  sufficient  evidence  to  indicate  that 
a  crime  has  been  committed  and  create  a  possibility 
that  the  prisoner  committed  it.  The  work  of  the 
grand  jury,  which  in  more  serious  cases  supple- 
ments the  work  of  the  examining  magistrate,  is 
conducted  more  like  an  examination,  since  no  con- 
tradictory element  is  introduced  into  it.  The  Con- 
tinental method  certainly  seems  better  fitted  for 
the  purposes  of  an'  examination.  In  the  quiet  of 
the  cabinet  d'  instruction,  undisturbed  by  a  contra- 
dictory debate,  the  juge  ^instruction  can  learn 
enough  about  a  case  to  determine  whether  it  ought 
to  be  sent  to  trial  or  dismissed,  though  not  enough 
for  a  final  decision.  The  contradictory  debate  in 
the  preliminary  examination  cannot  furnish  a  sat- 
isfactory basis  for  a  decision,  because  of  the  short- 
ness of  the  time  which  makes  careful  preparation 
and  a  presentation  of  all  the  evidence  impossible. 

But  when  we  come  to  the  trial  a  final  decision 
is  wanted.  It  may  be  safely  laid  down  as  a  rule 
that  the  judge  should  have  nothing  to  do  with  the 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

gathering  or  presentation  of  evidence.  This  should 
be  done  by  others  and  put  before  him  in  the  manner 
best  calculated  to  show  its  value.  For  this  reason,  > 
the  Continental  method  in  which  the  judge  ques-  1 
tions  the  witnesses,  thus  conducting  the  presentation 
of  evidence  for  both  sides,  is  very  objectionable. 
It  is  a  psychic  impossibility  for  a  man  to  keep  in ' 
mind  all  the  important  considerations  on  both  sides 
and  bring  out  all  the  significant  points  in  the  evi- 
dence. To  accomplish  this  the  examination  of 
witnesses  should  be  conducted  by  representatives 
of  both  sides,  each  having  in  mind  the  important 
points  on  his  own  side  and  bringing  them  out  in 
the  testimony  Each  would  also  be  watching  for 
contradictions  and  discrepancies  in  the  evidence 
offered  by  the  other  side  and  would  expose  them  in 
a  way  which  would  be  impossible  for  the  judge, 
who  would  be  endeavoring  to  keep  in  mind  at  the 
same  time  the  important  points  on  both  sides.  If 
it  were  possible  for  a  single  man  to  do  this,  the 
procedure  of  investigation  would  be  the  best  one 
for  a  trial.  But  since  it  is  a  psychic  impossibility 
the  system  of  examination  and  cross-examination 
and  of  the  contradictory  debate  as  developed  by 
the  procedure  of  accusation  is  the  best.  This 
opinion  has  been  expressed  by  a  distinguished 
French  legal  writer  in  the  following  words:  "The 
inquisitorial  form  is  very  appropriate  for  researches, 
verifications,  the  proof  of  facts.  The  examination, 
founded  upon  a  profound  observation  of  witnesses, 
of  accused  persons  and  of  facts  concerned,  is  a 
philosophic  task  which  can  be  accomplished  by  a 
235 


single  man,  and  which  requires  of  this  man  a 
double  condition;  the  experience  of  things  and  the 
science  of  the  law.  But  carry  this  inquisitorial 
system  beyond  the  preparatory  examination,  try  to 
apply  it  to  the  final  examination  and  its  power 
weakens  at  once — for  the  judgment  is  the  work  of 
conviction,  and  not  of  science,  and  a  method,  how- 
ever scientific  it  may  be,  can  conduct  to  the  for- 
mation of  a  judgment  but  does  not  form  it.  The 
conviction,  this  intimate  feeling  of  truth,  can  be  born 
only  in  the  debates.  Its  elements  are  the  interrog- 
atory and  the  defense  of  the  accused,  the  hearing 
;  and  the  discussion  of  testimony,  the  examination 
of  all  the  facts,  the  weighing  of  all  the  proofs.  It  is 
necessary  that  the  judge,  magistrate  or  juror,  should 
be  present  at  the  contradictory  debate  of  these  facts 
and  of  these  declarations ;  that,  placed  in  the  midst 
of  the  opposing  allegations  of  the  accusation  and 
of  the  defense,  which  collide  without  cessation,  he 
should  examine,  weigh,  and  determine  his  opinion. 
The  proofs  the  most  palpable  have  value  only  when 
they  have  been  submitted  to  this  test;  it  is  in  the 
combat  aroused  that  the  truth  manifests  itself  "* 

We  therefore  adopt  the  system  developed  by  the 
procedure  of  accusation  for  reaching  a  decision 
\vhile  retaining  the  theory  of  the  procedure  of  in- 
vestigation. But  there  is  danger  that  with  the 
system  will  be  retained  the  theory  of  the  procedure 
f  accusation.  This  system  is  derived  from  the 
duel  and  in  form  is  much  like  a  duel,  though  the 

1  Faustin   Helie :    Traite   de   I'instruction  criminelle. 
2*6 


SYSTEMS   OF   CRIMINAL    PROCEDURE 

weapons  now  used  are  words  and  arguments.  It 
is  necessary  to  indicate  very  clearly  that  this  sys- 
tem is  being  used  because  it  is  the  best  one  by  which 
to  present  the  evidence  and  to  represent  social  and 
individual  rights,  both  of  which  must  be  taken  in- 
to consideration.  But  it  is  necessary  to  emphasize 
that  there  is  no  fundamental  antagonism  between 
these  two  kinds  of  rights.  In  the  following  chap- 
ters on  the  different  stages  of  procedure  changes 
will  be  discussed  by  which  all  suggestion  of  this 
antagonism  will  be  eliminated  from  procedure. 


CHAPTER  VII 
THE  POLICE  AGENCY 

It  may  be  contended  that  the  functions  performed 
by  the  police  agency  do  not  belong  to  procedure,  on 
the  ground  that  procedure  does  not  begin  until  a 
process  is  begun  by  an  official  of  the  judicial  sys- 
tem such  as  a  judge  or  prosecuting  attorney.  It 
is  true  that  one  of  the  police  functions  is  not  a 
part  of  procedure.  This  is  the  enforcement  of 
those  administrative  measures  whose  object  it  is  to 
prevent  crime  by  maintaining  orderly  conditions. 
The  distinction  between  this  preventive  and  the 
repressive  function  of  the  police  is  recognized  in 
some  countries,  as,  for  example,  in  France,  by  or- 
ganizing two  bodies  of  police,  the  first  being  the 
administrative  police  for  performing  the  prevent- 
ive function,  the  other  being  the  judicial  police  for 
performing  the  repressive  function.  This  last  func- 
tion belongs  to  procedure  because  it  performs  the 
first  step  in  separating  criminals  from  the  rest  of 
society. 

The  first  step  in  performing  this  repressive  func- 
tion is  to  apprehend  the  criminal.  The  second  is 
to  gather  evidence.  This  last  has  not  been  de- 
veloped very  much  as  yet  but  we  shall  see  in  this 
'238 


THE    POLICE    AGENCY 

chapter  what  great  possibilities  it  offers.  The 
development  of  this  function  would  bring  the 
police  agency  into  much  closer  touch  with  the  other 
parts  of  procedure  and  would  make  it  an  integral 
part  of  procedure. 

A  criminal  or  a  person  suspected  of  crime  is  ap- 
prehended by  means  of  arrest.  According  to  the 
common  law  the  power  of  arrest  could  be  exercised 
by  any  person  when  a  crime  was  being  committed 
in  his  presence,  or,  when  a  felony  had  been  com- 
mitted, over  the  person  whom  he  had  reason  to  be- 
lieve was  the  felon.  Also  when  a  hue  and  cry  or 
general  alarm  was  raised  for  the  pursuit  and  cap- 
ture of  a  felon  or  of  one  who  had  committed  a 
dangerous  assault,  every  one  who  was  called  upon 
to  assist  in  this  arrest  under  hue  and  cry  was  bound 
to  do  so.  But  the  power  of  arrest  is  now  exercised 
almost  entirely  if  not  entirely  in  Anglo-Saxon 
countries  as  well  as  elsewhere  by  public  employees 
called  policemen.  A  policeman  can  exercise  the 
power  of  arrest  when  a  crime  is  being  committed 
in  his  presence  or  when  he  has  good  reason  for  be- 
lieving that  a  certain  person  has  committed  a 
crime.  But  the  power  of  summary  arrest  by  pri- 
vate persons  and  by  policemen  has  always  been 
limited  as  much  as  social  welfare  would  permit,  in 
order  to  restrict  abuse  of  this  power  and  violation 
of  individual  rights.  The  power  of  arrest  has  been 
exercised  as  much  as  possible  by  means  of  warrants. 

A  warrant  is  a  written  mandate  issued  by  a 
magistrate  or  other  judicial  official  directing  a  pub- 
lic employee  or  a  private  person  to  arrest  a  certain 
239 


r 


CRIMINAL    PROCEDURE 

person  and  to  bring  him  before  the  proper  author- 
ity for  examination  or  trial.  It  is  evident  that  the 
issuing  of  a  warrant  creates  a  little  delay  which 
gives  time  for  deliberation  thus  preventing  hasty 
and  ill-considered  action.  Furthermore  a  warrant 
is  in  many  cases  sworn  out  on  the  strength  of  a 
charge  made  by  a  private  person  who  makes  him- 
self liable  to  a  severe  penalty  if  the  charge  proves 
to  be  very  ill-founded.  Thus  individual  liberty  is 
safeguarded  and  protected  and  the  power  of  sum- 
mary arrest  is  used  only  when  a  criminal  is  almost 
certain  of  escaping  if  immediate  action  is  not  taken. 
In  French  procedure  a  juge  d'instruction  or  ex- 
amining magistrate  has  the  power  at  first  only  of 
issuing  a  warrant  to  appear  which  is  a  simple  order 
to  present  one's  self  which  cannot  be  carried  out 
with  force.  If,  however,  this  order  is  not  heeded 
a  warrant  to  bring  may  be  issued  which  may  be 
carried  out  with  force. 

When  an  arrest  has  been  made  summarily  or  by 
means  of  a  warrant,  the  prisoner  is  brought  before 
a  magistrate  for  examination  as  soon  as  possible. 
It  is  usually  required  that  this  examination  be  held 
within  twenty-four  hours.  In  French  procedure 
if  the  prisoner  responds  to  a  warrant  to  appear 
he  must  be  examined  immediately.  If  the  mag- 
istrate has  final  jurisdiction  over  the  offense  with 
which  the  prisoner  is  charged  he  may  dispose 
of  the  case  at  once.  But  if  he  has  not  final  juris- 
diction his  examination  must  result  either  in  dis- 
missal of  the  charge  on  account  of  utter  lack  of 
foundation  or  in  preliminary  detention  or  provis- 
240 


THE    POLICE    AGENCY 

ional  liberation.  Preliminary  detention  is  effected 
in  common  law  procedure  by  a  commitment  to  a 
place  of  imprisonment.  In  French  procedure  it  is 
effected  by  a  warrant  to  hold  in  custody  or  war- 
rant of  arrest  (mandat  de  depot  oil  mandat  d'arret). 
The  necessity  for  preliminary  detention  depends 
upon  the  character  of  the  prisoner  and  of  the  case. 
If  there  is  little  danger  of  the  escape  of  the  prisoner 
or  if  the  charge  made  against  him  is  a  very  unlikely 
one,  the  magistrate  will  grant  provisional  liberation. 
But  if  there  is  great  danger  of  the  flight  of  the 
prisoner,  preliminary  detention  is  necessary  to  pre- 
vent this.  It  may  also  be  necessary  to  prevent 
destruction  of  evidence  of  guilt.  In  French  pro- 
cedure the  magistrate  can  issue  an  order  forbid- 
ding the  prisoner  from  communicating  with  anyone, 
except  his  counsel,  if  he  thinks  the  prisoner  may 
secure  the  destruction  of  evidence  of  guilt  by  com- 
municating with  his  accomplices.  This  interdiction 
lasts  for  ten  days  after  which  it  may  be  renewed 
once.  It  is  a  relic  of  the  old  inquisitorial  procedure 
and  was  a  method  by  which  confessions  were  forced 
from  prisoners  even  sometimes  when  they  were 
innocent.  This  power  has  been  considerably  modi- 
fied in  order  to  prevent  this  abuse.  In  lawless 
countries  preliminary  detention  is  sometimes  neces- 
sary to  protect  the  accused  from  the  vengeance  of 
his  opponents. 

Preliminary  detention  is  a  necessary  measure  of 
social  defense.     It  is,  however,  a  serious  encroach-    . 
ment   on    the    liberty    of    the    individual,    for    the 
prisoner  has  not  been  found  guilty  as  yet  and  is 
1 6  241 


I 


CRIMINAL    PROCEDURE 

presumably  innocent.  Therefore  this  period  of  de- 
tention is  not  punishment.  If  the  prisoner  is  found 
guilty  it  is  usually  transformed  into  punishment 
and  deducted  from  the  length  of  imprisonment.  If, 
however,  he  is  acquitted  he  will,  notwithstanding 
his  innocence,  have  suffered  this  period  of  impris- 
onment. In  order  to  repair  in  some  measure  the 
injury  done  by  this  imprisonment,  indemnity  is  some- 
times given.  The  principle  of  indemnification  for 
preventive  detention  endured  by  innocent  persons 
was  suggested  by  Frederick  the  Great  in  1776  but 
was  not  then  put  into  effect.  Imperfect  legislation 
applying  this  principle  has  been  passed  in  some  of 
the  Swiss  cantons,  in  Sweden,  Norway,  Hungary 
and  Denmark.  Laws  were  passed  in  Germany  in 
1898  and  1904  which  were  based  on  the  following 
principles : 

1.  Indemnity  is  given  as  a  legal  right. 

2.  It  is  given  only  when  innocence  has  been 
proved. 

3.  It  is  not  given  if  the  defendant  has  caused 
his  own  arrest  by  carelessness  or  on  purpose. 

4.  Indemnity  is  given  only  for  material  damages. 
The  tribunal  that  acquits  must  always  decide  if 

indemnity  is  owing  and  grant  it. 

Various  precautions  are  taken  to  make  as  little 
irksome  as  possible  this  liability  to  arrest,  thus  safe- 
guarding individual  rights  and  liberties.  Examina- 
tion is  guaranteed  within  a  short  time  after  arrest, 
usually  twenty-four  hours.  In  the  common  law 
the  writ  of  habeas  corpus  is  an  order  issued  by  a 
court  directing  that  a  person  in  confinement  be 
242 


THE    POLICE    AGENCY 

brought  before  it  in  order  to  determine  the  legal- 
ity of  the  confinement.  But  the  principal  measure 
used  to  make  preliminary  detention  unnecessary 
is  provisional  liberation.  The  granting  of  pro- 
visional liberation  depends  partly  on  the  law  and 
partly  on  the  judge.  The  law  specifies  which 
crimes  are  bailable  and  which  are  not,  so  but  a 
certain  amount  of  discretionary  power  is  left  to 
the  judge.  The  liberation  is  usually  on  bail  which 
depends  on  the  giving  of  a  certain  amount  of 
security  by  sureties  or  by  the  prisoner  himself. 
Beccaria  has  expressed  in  the  following  passage  the 
necessity  of  making  this  period  between  the  arrest 
and  the  final  decision  as  little  burdensome  as  pos- 
sible for  the  accused :  "Imprisonment  being  no 
other  thing  than  a  means  of  making  sure  of  a  cit- 
izen until  he  is  judged  guilty,  and  this  means  being 
essentially  vexatious,  it  should  be  asjittle  harsh  as 
possible,  and  should  last  only  just  as  long  as  is 
necessary.  Its  duration  must  be  measured  by  what 
the  examination  of  the  action  absolutely  requires 
and  by  the  right  that  those  who  have  been  detained 
the  longest  have  to  be  judged.  The  guilty  person 
must  be  restricted  only  as  much  as  is  necessary  to 
^prevent  him  from  escaping  or  from  hiding  the  proofs 
of  his  crime."1  Unconvicted  prisoners  should, 
therefore,  be  given  the  best  possible  treatment. 
They  should  not  be  imprisoned  with  convicted 
criminals  as  is  now  done,  but  should  be  detained  in 
a  place  not  a  prison  and  much  more  comfortable 
than  an  ordinary  prison. 

1  C.  Beccaria :    Crimes  and  Punishments,  Chap.  XIX. 
243 


CRIMINAL    PROCEDURE 

The  second  part  of  the  repressive  function  of 
the  police  is  that  of  searching  for  evidence.  It  is 
evident  that  the  police  have  a  most  favorable  op- 
portunity for  securing  evidence  since  they  are  al- 
ways on  the  watch  for  crime  and  criminals.  It  is, 
therefore,  important  that  they  should  be  used  as 
much  as  possible  for  gathering  evidence.  To  ac- 
complish this  they  are  given  a  certain  amount  of 
power  to  search  residences  and  to  seize  evidence 
when  delay  incurs  danger  of  the  disappearance  or 
destruction  of  evidence.  Otherwise  this  can  only 
be  done  under  authority  from  a  magistrate,  thus 
safeguarding  the  accused  and  other  private  persons 
from  search  and  confiscation  of  property  without 
valid  reason.  But  the  police  have  not  yet  been 
sufficiently  utilized  in  this  work  of  gathering  evi- 
dence. They  frequently  fail  to  secure  evidence  be- 
cause they  a»e  ignorant  of  what  is  evidence.  On 
the  wall  of  the  classroom  of  the  school  for  the 
scientific  police  in  the  Palais  de  Justice  at  Paris 
is  written :  "L'ceil  ne  voit  dans  les  choses  que  ce 
qu'il  y  re  garde.  Et  il  ne  re  garde  que  ce  quivest 
deja  dans  I'esprit."1  The  police  need  to  be  taught 
what  to  observe  while  on  the  watch  for  crime  and 
criminals  or  when  on  the  scene  of  a  crime.  Many 
of  the  details  which  are  of  great  value  as  evidence 
escape  their  notice  because  they  are  ignorant  of 
their  significance.  To  teach  them  what  is  really 
significant  as  evidence  is  the  object  of  the  scientific 
instruction  of  the  police  which  is  being  given  in 

1"The  eye  sees  in  things  only  what  it  looks  for,  and  it 
looks  only  for  what  is  already  in  the  mind." 

244 


THE    POLICE    AGENCY 

various  places  on  the  Continent.  This  question  of 
the  instruction  of  the  police  we  will  take  up  again 
a  little  later  when  discussing  the  personnel  of  the 
police. 

This  function  of  the  police  necessitates  their  act- 
ing as  witnesses  very  frequently.  The  testimony 
of  the  police  is  notorious  everywhere  for  its  partial- 
ity against  the  accused.  A  number  of  reasons  may 
be  cited  for  this  partiality.  In  the  first  place  there 
is  the  psychic  effect  upon  the  policeman  of  his, 
work.  Because  he  is  constantly  on  the  lookout 
for  criminals,  he  tends  to  regard  every  person  he 
finds  under  suspicious  circumstances  as  a  criminal 
and  consequently  testifies  against  him.  The  police- 
man is  open  to  the  same  danger  as  the  judge,  only 
to  a  much  greater  degree,  for  the  judge  hears  the 
evidence  for  both  sides  in  the  course  of  the  trial 
while  the  policeman  usually  knows  only  the  evi- 
dence against  the  prisoner.  Furthermore  the 
policeman  frequently  has  a  personal  reason  for 
wanting  to  testify  against  the  prisoner.  If  he  has 
used  the  power  of  summary  arrest  in  arresting  the 
prisoner  it  is  to  his  interest  to  secure  a  convic- 
tion in  order  to  sustain  his  reputation  for  good 
judgment  in  using  this  power.  Leaving  aside  those 
who  are  corrupt  on  entering  the  police  service 
and  those  who  become  corrupt  from  their  relations 
with  criminals,  it  is  evident  that  these  two  causes 
tend  to  vitiate  the  value  of  the  testimony  of  any 
policeman  however  honest  and  faithful  to  his  duties 
he  may  be. 

But  another  cause  tends  to  vitiate  still  more  the 
245 


j 

the    / 

ial,.. 

T"    \ 


CRIMINAL    PROCEDURE 

value  of  the  testimony  of  the  police.  A  policeman 
is  too  frequently  placed  in  the  position  of  a  public 
prosecutor.  Especially  true  is  this  in  England 
where  in  the  place  of  a  regular  system  of  public 

.'  prosecution  the  police  conducts  in  many  cases  the 
prosecution  which  is  in  theory  private.  In  such 
cases  the  policeman  is  placed  in  the  extraordinary 
position  of  being  both  the  public  prosecutor  and  a 
witness.  The  viciousness  of  this  situation  is  most 
apparent.  Testimony  under  such  conditions  is 
almost  certain  to  be  biased  and  partial. 

The  English  system  tends  to  make  prosecuting 
a  function  of  the  police.  This,  however,  can  never 
be  a  valid  police  function  not  only  because  police- 

.  men  have  to  serve  so  frequently  as  witnesses  but 

I  also  because  it  is  a  duty  of  the  police  to  protect 

the  innocent  as  well  as  to  apprehend  the  guilty  and, 

,  therefore,  they  should  not  be  placed  in  a  partizan 
position  towards  their  prisoners  who  are  still  pre- 
:  sumed  to  be  innocent.  The  position  of  the  police- 
man should  be  as  unbiased  as  that  of  the  judge. 
They  represent  the  beginning  and  the  end  of  the 
procedure  and  the  functions  of  both  should  be  ad- 
ministered with  the  utmost  impartiality.  Partizan- 
ship  should  be  permitted  only  in  the  contradictory 
debate  on  the  part  of  the  prosecution  and  the  de- 
fense. The  only  reason  for  admitting  it  at  this 
point  is  that  this  debate  when  well-balanced  is  the 
best  method  of  presenting  evidence.  The  function 
of  prosecuting  should  be  completely  removed  from 
the  police  in  England  and  wherever,  as  in  the 
United  States,  there  is  a  tendency  to  leave  the 
246 


THE    POLICE    AGENCY 

prosecution  of  minor  offenses  in  the  hands  of  the 
police. 

The  question  of  how  to  remove  the  first  two 
causes  of  partiality  in  the  testimony  of  policemen, 
namely,  the  psychic  attitude  of  the  policeman 
towards  criminals  and  his  interest  in  securing  con- 
viction, is  more  difficult.  The  first  may  be  counter- 
acted in  part  by  carefully  instructing  the  policeman 
that  his  function  is  not  only  to  apprehend  criminals  >" 
but  also  to  protect  the  innocent  and  by  constantly 
reminding  him  of  this  fact.  As  to  the  second, 
social  defense  requires  that  the  police  shall  have  the 
power  of  summary  arrest  and  a  policeman  is  al- 
most certain  to  have  a  personal  interest  in  securing 
conviction  in  every  case  where  this  power  has  been 
used.  But  the  evil  results  from  this  personal  in- 
terest could  be  in  part  prevented  if  the  police  were 
not  to  so  great  an  extent  the  agents  of  the  prosecu-  ] 
tion  or  were  equally  the  agents  of  the  prosecution 
and  of  the  defense.  Also  by  making  the  contradic- 
tory debate  better  balanced  and  therefore  more  ef- 
fective, as  we  shall  see  it  in  the  next  chapter,  a 
check  would  be  put  upon  the  partiality  of  the  testi- 
mony of  a  policeman. 

We  now  come  to  the  very  important  matter  of 
the  personnel  of  the  police.  The  question  as  to 
whether  it  is  well  to  divide  the  police  into  two 
branches,  administrative  and  judicial,  may  be 
raised.  This  division  is  probably  preferable  for 
the  administrative  function  because  the  administra- 
tive police  not  having  so  much  power  do  not  acquire 
an  offensively  aggressive  manner  and  perform  their 
247 


CRIMINAL    PROCEDURE 

work  much  more  courteously  and  quietly.  This  is 
very  noticeable  in  the  French  sergents  de  ville,  who 
belong  to  the  administrative  police.  This  division 
may,  however,  be  no  gain  for  the  repressive  func- 
tion, because  the  administrative  police  do  not  give 
so  much  assistance  in  performing  this  function.  On 
the  other  hand  it  might  be  possible  to  give  a  special 
body  of  judicial  police  a  better  training  for  per- 
forming the  repressive  function  than  the  whole  of 
the  police  force.  And  this  is  the  important  ques- 
tion in  connection  with  the  personnel  of  the  police 
force.  Whether  a  part  or  all  of  the  force  devotes 
itself  to  performing  the  repressive  function,  all 
ought  to  have  a  certain  amount  of  preparation  for 
this  work,  while  a  certain  number  should  have  a 
special  training. 

It  is  evident  that  the  members  of  a  police  force 
must  always  be  men  of  a  rather  low  grade  of  edu- 
cation and  intelligence.  It  would  be  very  costly  to 
employ  men  of  a  high  grade  to  do  this  work  and, 
furthermore,  since  much  of  it  is  of  a  menial  sort, 
such  men  would  be  unwilling  to  do  it.  It  would, 
therefore,  be  impossible  to  give  them  a  philosophic 
conception  of  the  system  of  penal  repression  and 
of  their  function  in  it.  But  it  is  well,  as  has  been 
'suggested,  to  teach  them  their  specific  duties  and 
their  relation  to  criminals  on  the  one  hand  and  to 
innocent  citizens  on  the  other,  this  last  in  order  to 
prevent  them  from  abusing  their  power.  Further- 
more, they  must  be  taught  to  use  scientific  methods 
in  performing  their  duties.  It  is  not  necessary  to 
teach  scientific  theory,  but  the  applications  of 
248 


THE    POLICE    AGENCY 

theory,  as,  for  example,  the  technique  of  criminal 
anthropology  which  will  enable  the  policeman  to 
recognize  the  criminal  type,  the  scientific  methods 
for  the  identification  and  examination  of  the  traces 
of  crime,  anthropometry,  dactyloscopy,  etc. 

Several  courses  and  schools  for  teaching  scien- 
tific police  methods  have  been  started.  In  1896 
Ottolenghi  started  a  free  course  at  the  University 
of  Siena.1  In  1903  it  was  transferred  to  Rome, 
officially  recognized  by  the  government  and  made 
obligatory  for  police  functionaries.  The  program2 
of  the  work  of  this  course  will  give  some  idea  of 
the  kind  of  training  the  police  ought  to  have. 

I.  Generic     Identification — (i)    somatic     (2) 

photographic  (3)  anthropometric  (4) 
functional  (5)  psychological  (6)  anam- 
nestic. 

II.  Specific  Identification — (i)  dangerous  clas- 

ses according  to  the  scientific  criterion 
(2)  dangerous  classes  according  to  the 
practical  scientific  criterion  (3)  danger- 
ous classes  according  to  the  law  of 
public  surety  (4)  the  criterion  for  the 
application  of  the  law  of  public  surety. 

III.  The    Scene   of   Crimes — (i)    evidences   of 

crimes  (2)  investigations  for  crimes 
against  persons  (3)  investigations  for 
crimes  against  property. 

1 E.   Ferri:    La  sociologle  criminelle,  Paris,   1905,  p.   518. 
zProf.    S.    Ottolenghi:    in    the    Archives    d'anthropologie 
criminelle,  1903. 

249 


CRIMINAL    PROCEDURE 

IV.  The   Search   for  the  Criminal — (i)    he   is 

known  (2)  he  has  left  traces   (3)  he  is 
unknown. 

V.  The  Functions  and  Organization  of  the  de- 

tective   force. 

The  agents  of  the  public  surety  on  the  Continent 
correspond  to  detectives  in  England  and  in  the 
United  States  and  are  almost  the  only  police  agents 
who  have  been  given  a  special  training.  In  the 
Palais  de  Justice  at  Paris  is  the  school  started  by 
Bertillon  for  the  employees  of  the  identification 
bureau  and  the  agents  of  the  public  surety.  The 
course  lasts  three  months.  The  detectives  are 
taught  the  spoken  portrait  (portrait  parle}  by 
means  of  many  photographs  representing  every 
type  of  each  feature  of  the  physiognomy.  Every 
variation  of  the  color  of  the  eyes  is  taught  by  means 
of  glass  models  of  eyes.  At  the  end  of  the  course 
each  student  must  identify  one  out  of  two  hundred 
or  more  persons  walking  around  in  the  courtyard 
of  the  Palais  de  Justice  by  means  of  a  description  or 
spoken  portrait  which  has  been  furnished  him.  A 
similar  school  has  been  established  in  Spain  and 
at  the  University  of  Lausanne  in  Switzerland  Pro- 
fessor Reiss  gives  a  course  in  scientific  police 
methods.  But  the  teaching  and  study  of  these 
methods  have  been  restricted  so  far  almost  entirely 
to  methods  of  identifying  criminals.  The  study 
should  be  extended  so  as  to  include  the  traces  of 
crime,  etc.  The  instruction  should  also  be  made 
more  general  so  that  every  policeman  should  have 
a  certain  amount  of  training,  while  a  special  class 
250 


THE    POLICE    AGENCY 

like  the  detectives  to-day  should  have  a  special 
training  in  all  the  scientific  police  methods  for  re- 
pressing crime. 

Several  methods  of  identifying  and  classifying 
criminals  have  been  devised  and  have  been  carried 
to  so  high  a  pitch  of  perfection  that  it  is  practically 
impossible  for  a  recidivist  to  hide  his  identity  in  the 
country  where  he  has  committed  a  crime.  It  is 
also  possible  to  trace  a  record  in  a  foreign  country 
by  means  of  correspondence  provided  the  same 
method  of  identification  and  classification  is  used 
in  the  two  countries. 

The  first  scientific  method  of  identification  was 
the  anthropometric  system  developed  by  Bertillon 
at  Paris.1  This  system  consists  in  the  measure- 
ment of  certain  distances  on  the  human  body  which 
remain  the  same  from  maturity  to  death.  These 
measurements  include  the  height,  the  left  middle 
finger,  the  left  foot,  the  left  forearm,  the  face,  the 
little  finger,  etc.  In  order  to  catalog  the  records 
each  measurement  is  divided  into  three  classes. 
For  example,  the  first  measurement  divided  is,  let 
us  say,  the  height.  This  at  once  divides  the  records 
into  three  classes.  Then  each  class  is  divided  into 
three  classes  according  to  another  measurement, 
let  us  say,  the  face.  This  process  is  continued  with 
a  certain  number  of  measurements  until  the  number 
of  records  in  which  it  is  necessary  to  search  for  an 
individual  record  is  comparatively  small.  This 
last  quantity  of  records  is  divided  into  seven  parts 

1Cf.    Edmond    Locard    in    the    Archives    d'anthropologie 
criminelle,  Lyons,  March,   1906. 


CRIMINAL    PROCEDURE 

according  to  the  color  of  the  eyes.  In  the  last 
division  is  to  be  found  the  record  of  the  criminal 
if  his  record  has  been  taken  previously.  If  one  of 
the  measurements  is  on  the  border-line  between 
two  classes  and  the  record  is  not  found  in  one  of 
them,  search  is  made  in  the  other  class  as  well. 
The  anthropometric  system  permits  of  an  exact 
classification  and  by  means  of  it  a  record  can  be 
found  very  quickly.  But  this  system  is  not  appli- 
cable to  immature  persons  whose  measurements  are 
not  yet  fixed.  It  is  also  rather  difficult  to  apply  to 
women  because  the  hair  on  the  head  causes  errors 
in  measuring  cranial  distances.  Furthermore  the 
system  requires  complex  and  rather  costly  machin- 
ery and  the  measurements  require  a  certain  amount 
of  time. 

The  anthropometric  system  at  first  served  only 
to  identify  criminals  after  they  were  caught.1  But 
it  was  also  important  to  use  it  to  catch  a  criminal 
who  was  free  under  a  false  name.  Photography 
had  been  used  from  the  first  as  complementary  to 
the  anthropometric  measurements.  But  the  photo- 
graphs were  of  little  or  no  use  in  searching  the 
records  because  it  was  impossible  to  classify  them. 
They  were  furthermore  very  expensive.  They  had, 
however,  591116  utility  in  helping  to  capture  a  crim- 
inal in  freedom.  If  a  detective  could  see  the  photo- 
graph of  a  criminal  he  was  much  more  likely  to 
recognize  him.  But  even  this  use  was  rather  lim- 
ited. It  is  usually  necessary  to  search  for  a  crim- 
inal in  several  places  at  once.  It  was  not  easy  to 

1  Cf.  C.  Lombroso :  Le  crime,  Paris,   1907,  pp.   303-304. 
252 


THE    POLICE    AGENCY 

send  photographs  everywhere  where  the  criminal 
might  be  and  to  do  this  required  some  time.  To 
supply  this  need  for  s.  means  of  identifying  in 
the  field  the  so-called  "spoken  portrait"  (portrait 
parle}  was  devised  by  Bertillon.  This  is  a  descrip- 
tion of  the  physiognomy,  especially  of  the  right  ear 
and  nose,  and  also  of  the  person  in  general.  It  is 
difficult  to  classify  these  spoken  portraits  because 
their  systematization  is  not  absolutely  mathematical. 
But  the  spoken  portrait  is  the  best  means  so  far 
devised  for  identifying  in  the  field.  Copies  of  a 
spoken  portrait  can  be  sent  easily  and  cheaply  to 
every  place  where  the  criminal  is  likely  to  be.  If 
there  is  great  haste  it  can  be  telegraphed.  It  is, 
however,  essential  that  the  police  agents  who  use 
these  portraits  should  be  very  well  trained  so  as  to 
recognize  at  a  glance  the  subject  of  a  spoken  por- 
trait and  to  make  no  mistakes  by  arresting  wrong 
persons. 

A  description  of  the  color  of  the  irises  is  com- 
plementary to  the  spoken  portrait.  This  is  easy  to 
classify  and  to  search  for  in  the  records.  It  is, 
however,  easy  to  make  mistakes  and  much  practise 
is  needed  to  determine  the  exact  shade  of  color. 
This  method  has  been  much  used  by  Bertillon  for 
women  and  children. 

A  description  of  tattoo  marks  and  scars  is  com- 
plementary to  anthropometry.  They  cannot  be 
classified  or  searched  for  in  the  records  but  can 
be  added  to  an  anthropometric  record.  Their 
record  requires  a  good  deal  of  space  and  therefore 
253 


CRIMINAL    PROCEDURE 

Bertillon  and  Vucetich  of  Buenos  Ayres  have 
devised  systems  of  abridged  description. 

Another  system  of  identification  which  is  rapidly 
becoming  more  important  is  by  means  of  finger 
prints  or  dactyloscopy  which  has  been  developed 
by  Galton,  Coutagne,  Florence,  Henry  and  others. 
This  system  consists  in  taking  imprints  of  the  dig- 
ital extremities  of  the  two  hands.  These  imprints 
remain  the  same  from  the  sixth  month  of  the  intra- 
uterine  life  until  the  decomposition  of  the  body  and 
as  the  imprints  of  two  person  have  never  been  found 
to  be  identical  the  record  of  the  finger  prints  forms 
a  perfect  means  of  identification.  Various  methods 
of  classification  are  being  used.  All  of  them  are 
based  on  the  types  of  the  configuration  of  the  lines 
on  the  tips  of  the  fingers.  These  types  are  whorls, 
arches  (ordinary  and  tented)  and  loops  (radial 
and  ulnar).  The  most  complicated  system  of  clas- 
sification is  that  used  by  the  English  police  which 
is  based  not  only  on  the  types  of  the  configuration 
of  the  lines  but  also  the  number  of  lines  on  certain 
fingers  between  the  so-called  delta  where  the  lines 
of  the  tip  of  the  finger  commence  and  the  center  of 
these  lines. 

Dactyloscopy  can  be  applied  to  persons  not  en- 
tirely developed  as  well  as  to  adults,  because  the 
finger  prints  remain  the  same  throughout  life.  It 
is  easier  to  learn  than  the  anthropometric  system 
since  no  special  knowledge  of  the  human  body  is 
necessary.  The  method  of  taking  the  record  is 
simple  and  precise  and  therefore  rapid.  The  ap- 
paratus is  very  simple  and  inexpensive,  consisting 
254 


THE    POLICE    AGENCY 

only  01  an  ink  pad  and  blank,  so  that  the  imprints 
can  be  taken  almost  anywhere  immediately  after 
an  arrest.  When  classified  a  record  can  be  searched 
for  as  easily  as  in  an  anthropometric  system.  These 
advantages  of  dactyloscopy  have  resulted  in  its 
superseding  the  anthropometric  system  in  certain 
places.  In  England  the  anthropometric  system 
was  abandoned  a  few  years  ago  and  dactyloscopy 
is  now  the  only  means  of  identification.  The  sys- 
tem has  been  very  thoroughly  developed.  At  the 
police  headquarters  at  New  Scotland  Yard  in  Lon- 
don there  is  a  photographic  apparatus  by  means  of 
which  prints  are  enlarged  if  there  is  any  difficulty 
in  counting  the  lines.  Finger  prints  on  tools,  bot- 
tles, etc.,  used  by  criminals  are  photographed  and 
have  in  a  number  of  cases  aided  in  capturing  the 
criminals.  In  France  the  anthropometric  system 
is  still  the  basis  for  classification  and  the  finger 
prints  are  only  complementary.  But  the  tendency 
is  towards  abandoning  anthropometry  and  adopt- 
ing dactyloscopy  as  the  basis  of  classification  and 
this  tendency  seems  justified  by  the  advantages  of 
dactyloscopy. 

But  dactyloscopy  furnishes  a  means  of  identifica- 
tion only  when  the  criminal  is  caught.  It  is  a  de- 
fect of  the  English  system  that  it  furnishes  no 
means  of  identification  in  the  field.  Therefore 
though  we  may  abandon  the  anthropometric  sys- 
tem we  must  retain  the  spoken  portrait  which  has 
grown  out  of  that  system.  Otherwise  dactylos- 
copy alone  will  furnish  no  clue  for  the  identifica- 
tion of  the  criminal  in  the  field.  With  a  system  of 
255 


CRIMINAL    PROCEDURE 

'  identification  made  up  of  dactyloscopy  and  of  the 
spoken  portrait  it  will  be  practically  impossible  for 
the  criminal  to  hide  his  identity  when  caught  and 
very  difficult  to  avoid  capture  when  free. 

But  this  will  be  true  only  within  the  jurisdiction 
of  the  system  of  identification,  while  it  should  be 
made  impossible  for  a  criminal  to  hide  himself  in 
any  part  of  the  world.  A  certain  amount  of  corre- 
spondence now  goes  on  between  the  police  systems 
of  different  countries  and  criminals  are  sometimes 
identified  in  foreign  countries.  But  the  possibility 
of  doing  this  depends  upon  the  similiarity  of  the 
systems  of  identification  and  classification  of  two 
or  more  nations.  For  example,  it  is  possible  for 
the  French  police  to  secure  the  identification  of 
a  French  criminal  in  the  English  records  by  send- 
ing to  London  the  dactyloscopic  record.  But  it 
is  impossible  for  the  English  police  to  secure  the 
identification  of  an  English  criminal  in  the  French 
records  because  the  French  records  are  classified 
according  to  the  anthropometric  measurements 
which  are  not  taken  by  the  English  police.  An  in- 
ternational system  is  needed  by  means  of  which 
criminals  can  be  traced  in  any  part  of  the  world. 
It  has  been  suggested  that  a  congress  be  called  to 
establish  such  a  system.  It  is  doubtful  if  a  con- 
gress could  accomplish  this  at  the  present  time  be- 
cause there  is  too  great  a  variety  of  systems  and  it 
would  be  impossible  to  come  to  any  agreement. 
But  it  is  to  be  hoped  that  in  the  course  of  time  the 
best  system  will  be  universally  adopted.  Then  it 
will  be  possible  to  have  an  international  blank 
256 


THE    POLICE    AGENCY 

record  which  will  be  uniform  all  over  the  world. 
There  will  be  a  numerical  telegraphic  code  by 
means  of  which  a  description  can  be  sent  to  any 
part  of  the  world  at  a  low  cost.  There  may  even 
be  international  police  bureaus  (perhaps  one  for 
each  continent)  where  the  records  of  the  principal 
criminals  will  be  kept.  Upon  each  record  will  be  the 
finger  prints,  the  spoken  portrait,  a  description  of 
the  most  important  marks  on  the  body  and  the 
name,  place  of  birth  and  of  residences  and  con- 
demnations. This  record  would  be  an  amplifica- 
tion of  the  easier  judiciaire  as  it  exists  in  France. 
It  would  not  be  as  extensive  as  the  cartella 
biografica  or  biographical  chart  as  proposed  by 
Ottolenghi1  which  gives  the  anthropological  and 
sociological  characteristics  of  the  criminal  thus 
making  possible  a  classification  according  to  the 
type  of  criminal.  Whether  as  extensive  a  descrip- 
tion as  this  will  ever  be  necessary  remains  to  be  seen. 
An  important  question  in  the  administration  of 
the  police  force  is  as  to  what  officials  are  to  direct 
it.  Every  police  force  has,  of  course,  within  itself 
its  grades  and  officers.  But  the  police,  as  a  whole, 
stands  in  the  lowest  rank  of  the  system  of  procedure 
and  therefore  is  subordinate  to  the  other  branches  of 
the  procedure.  Generally  speaking  they  are  directed 
by  the  judiciary  as  a  whole.  But  as  a  matter  of 
fact  they  are  usually  directed  by  the  examining1  •* 
or  police  magistrates.  The  reason  for  this  is 

very  evident.     These  magistrates  issue  most  of  the 

. 

1 S.      Ottolenghi :      Archives     d'anthropologie     criminelle, 
Lyons,  June,    1906. 

:;•  257 


CRIMINAL    PROCEDURE 

warrants  by  means  of  which  arrests  are  effected. 
They  conduct  the  first  examination  after  arrest. 
They  are  in  the  best  possible  position  for  watching 
the  work  of  the  police  and  knowing  whether  it  is 
being  done  faithfully  and  well.  Their  position  is  a 
strictly  impartial  one,  so  that  they  can  guard  against 
any  tendency  of  the  police  either  to  violate  individual 
rights  or  to  neglect  social  defense.  But  in  order 
to  do  this  work  of  supervision  most  effectively,  a 
magistrate  should  have  some  knowledge  of  police 
methods.  It  is  very  unwise  to  appoint,  as  is  done 
to-day,  examining  magistrates  from  any  branch  of 
the  legal  profession  regardless  of  their  lack  of  spe- 
cial training.  Some  attempts  to  remedy  this  have 
been  and  are  being  made  on  the  Continent  by  giv- 
ing courses  on  scientific  police  methods  in  law 
schools.  Professor  Niceforo  has  given  such  a 
course  at  Lausanne1  and  Dr.  Hanns  Gross  gave  a 
course  for  a  time  first  at  Graz  and  then  at  Vienna 
for  higher  police  officials  and  examining  magistrates 
in  which  were  taught  scientific  police  methods  as 
well  as  the  psychology  of  testimony.  The  sub- 
stance of  this  course  has  been  published  in  a  book2 
which  shows  very  clearly  the  possibility  of  develop- 

n'ng  a  special  training  for  examining  magistrates, 
in  addition  to  training  in  the  law  school  it  might 
je  well  for  candidates  for  the  position  of  examin- 
*    ing  magistrate   to  be   connected    for   a  time   with 
the   police   force   in   the   work  of  supervising  the 

1  Dr.  Edmond  Locard :   Chronique  Latine  in  the  Archives 
d'anthropologie    criminelle,    Lyons,    1904. 

2  Hans    Gross :    Manuel    pratique    d 'instruction    judiciaire, 
Paris,    1899. 

258 


THE    POLICE    AGENCY 

gathering  and  classification  of  evidence,  thus  acquir- 
ing a  direct  acquaintance  with  police  methods.  This 
subject  will  be  more  fully  discussed  in  our  chapter 
on  the  judiciary. 

The  public  prosecutor  also  has  a  certain  amount 
of   authority   over   the   police.     We   have   already 
noted  the  evil  results  from  this  in  the  tendency  of 
the  police  to  become  agents  of  the  prosecution  in- 
stead of  maintaining  a  strictly  impartial  position.  ', 
And  yet  the  prosecution  must  have  the  aid  of  the  ] 
police  in  the  pursuit  of  criminals.     The  only  wav 
to  solve  this  difficulty  is  to  give  the  defense  as  much 
authority  over  the  police,  thus  counterbalancing  th 
influence  of  the   prosecution.     The   defense   could 
then  use  the  police  in  gathering  evidence.     But  this  * 
would  hardly  be  possible  under  a  system  of  private 
defense.     To  put  the  police  under  so  shifting  and 
uncertain  an  authority  as  private  counsel  would  be 
very  disconcerting  for  them  and  would  tend  to  dis- 
organize  the   police    force.     The   only   solution   is 
to  have  a  system  of  public  defense  corresponding 
to  the  public  prosecution  such  as  will  be  described 
in  the  following  chapter. 

In  France  the  prefects  and  mayors  have  a  certain 
amount  of  authority  over  the  judicial  police.  These 
officials  are,  strictly  speaking,  officials  of  the  ad- 
ministrative police.  The  repression  of  crime  is  not 
the  peculiar  function  of  this  branch  of  the  police  but 
very  naturally  it  informs  the  judicial  police  when 
it  is  aware  of  crimes  which  have  been  committed. 
Administrative  officials  frequently  denounce  such 
crimes  and  a  certain  amount  of  authority  has 


CRIMINAL    PROCEDURE 

been  given  them  to  take  an  active  part  in  the 
investigation  of  the  judicial  police.  This  has 
seemed  wise  from  the  point  of  view  of  general 
safety  in  order  to  bring  the  two  branches  of  police 
closer  together  and  to  utilize  the  information  of 
the  administrative  police  in  repressing  crime.  On 
the  other  hand  it  is  condemned  because  it  confuses 
administrative  and  judicial  functions.  The  admin- 
istrative officials  are  responsible  to  the  government 
in  power  and  thus  the  government  is  given  a  cer- 
tain amount  of  influence  in  judicial  matters.  The 
prefect,  who  is  responsible  only  to  the  government 
and  is  quite  independent  of  the  courts  of  appeal, 
has  as  much  power  as  a  juge  d' instruction, 

The  press  may  be  used  by  the  police  to  aid  in 
capturing  criminals.  It  is  true  that  the  press  does 
more  or  less  to  stimulate  criminality  by  publishing 
sensational  accounts  of  crimes  and  criminals  which 
incite  others  to  emulate  and  imitate.  But  this  is  no 
reason  why  the  press  should  not  also  be  used  to  aid 
the  police  in  repressing  crime.  "In  Switzerland, 
the  government  has  a  kind  of  manual  containing  the 
photographs  and  biographies  of  the  best  known 
Swiss  criminals.  In  Germany  has  been  introduced 
the  practise  of  inserting  in  the  announcements  of 
the  most  popular  journals,  the  description,  the 
rewards  offered  and  even  the  photographs  of  the 
criminals  whose  arrest  is  most  necessary.  At  May- 
ence  (Germany)  is  published  a  journal  in  three 
languages :  French,  German  and  English :  Inter- 
nationale Criminal  Polizeiblatt,  Moniteur  Interna- 
tional de  Police  Criminelle,  International  Criminal 
260 


THE    POLICE    AGENCY 

Police  Times,  which  goes  out  every  week  and  which 
is  edited  by  the  councilor  of  police,  the  Polizeirath, 
and  contains  the  portraits  and  marks  of  the  crim- 
inals sought  for."1  At  Cairo  also  is  published  a 
weekly  police  journal  with  the  descriptions,  pho- 
tographs, etc.,  of  criminals  who  are  wanted.  "It 
is  thus  that  the  press,  and  particularly  the  advertis- 
ing of  the  journals  which  until  now  has  been  most 
often  a  source  of  blackmail,  of  swindles,  and  of 
calumnies  can  become  a  means  of  social  defense."2 
An  international  police  press  could  very  well  be 
started  giving  news  of  criminals  wanted  in  any 
part  of  the  world. 

The  public  also  can  give  some  assistance.  Pop- 
ular accusation  was  based  on  the  theory  that  the 
public  was  sufficiently  interested  in  the  repression 
of  crime  to  ensure  the  prosecution  of  every  crime 
by  a  member  of  the  public.  It  failed  because  the 
public  has  not  a  sufficient  amount  of  interest.  But 
to  the  extent  that  the  interest  of  the  public  can  be 
aroused  and  that  it  can  be  induced  to  aid  by  fur- 
nishing information  and  evidence  it  is  well  to  do 
so.  One  reason  for  the  publicity  of  the  examina- 
tion in  Anglo-Saxon  procedure  is  to  stimulate  this 
interest. 

The  international  character  of  police  activity 
should  be  extended  as  far  as  possible.  The  battle 
against  crime  is  common  to  all  countries  and  they 
may  well  combine  in  carrying  it  on.  We  have 
already  suggested  an  international  identification 

1C.  Lombroso:  Le  crime,  Paris,  1907,  p.  307. 
2  C.  Lombroso :  Op.  cit.  p.  307. 
261 


CRIMINAL    PROCEDURE 

service  and  an  international  police  press.  An  inter- 
national police  union  might  be  formed  which  would 
internationalize  still  more  features  of  police  activity. 
It  has  even  been  suggested  that  such  a  union  should 
have  its  relations  independent  of  ministers  of 
foreign  affairs.  This  would,  of  course,  depend 
upon  international  politics  and  may  not  be  possible 
now,  but  everything  which  tends  to  unify  the  police 
activities  of  the  world  should  be  encouraged. 


CHAPTER  VIII 

PROSECUTION  AND  DEFENSE 

In  a  previous  chapter  on  the  systems  of  criminal 
procedure  we  have  seen  that  prosecution  and  de- 
fense do  not  exist,  strictly  speaking,  in  the  pro- 
cedure of  investigation  but  that  they  have  been 
introduced  into  the  systems  based  on  the  procedure 
of  investigation  as  well  as  those  based  on  the  pro- 
cedure of  accusation  because  they  furnish  the  best 
means  of  producing  evidence  in  the  course  of  a 
trial. 

The  preliminary  stage  of  prosecution  is  called 
accusation.  An  accusation  may  be  made  by  a 
private  person  or  by  a  public  agency.  A  private 
accusation  is  made  by  the  injured  party  or  by  "those 
of  his  lineage,"  or  it  may  be  popular,  that  is  to  say, 
made  by  any  citizen.  Public  accusation  may  be  made 
by  a  number  of  public  agencies.  As  we  have  al- 
ready noted,  in  the  inquisitorial  procedure  there 
was  no  prosecution,  but  the  tendency  in  all  inquis- 
itorial systems  was  for  the  judges  to  become  prose~ 
cutors.  So  clearly  recognized  was  this  in  the  ancient 
French  law  that  it  was  expressed  in  the  maxim  that 
"every  judge  is  an  attorney  general."  But  it  is 
very  evident  that  prosecution  by  a  judge  predisposes 
26. 


CRIMINAL    PROCEDURE 

him  to  believe  in  the  guilt  of  the  prisoner.  For 
this  reason  the  power  of  the  judge  to  prosecute  was 
abolished  at  the  French  Revolution.  The  power  of 
prosecuting  was  put  entirely  into  the  hands  of  the 
\public  prosecutor.  But  it  was  feared  that  this 
official  might  sometimes  fail  to  perform  his  duty. 
It  was  therefore  provided  that  a  court  of  appeal 
might  hear  a  denunciation  of  a  crime  or  mis- 
demeanor made  by  one  of  its  members  and  then 
require  the  prosecutor  to  prosecute.  Thus  was 
established  a  form  of  judicial  surveillance  over 
public  action. 

Accusation  may  be  made  by  the  grand  jury  in 
Anglo-Saxon  procedure.  An  indictment  is  rtot, 
strictly  speaking,  an  accusation  by  the  grand  jury 
1  since  the  accusation  has  already  been  made  by  a 
private  individual  or  the  public  prosecutor.  But 
a  presentment  is  an  accusation  made  by  a  grand 
jury  at  its  own  initiative  and  is,  therefore,  the  verit- 
able form  of  accusation  made  by  the  grand  jury. 
It  may  be  questioned  whether  this  is  a  form  of 
public  accusation.  It  is  true  that  at  one  time  the 
grand  jury  was  no  more  than  a  group  of  private 
individuals  who  came  to  lay  their  own  or  their 
neighbors'  grievances  before  the  judge.  But  though 
the  grand  jury  is  still  formed  of  private  individ- 
uals they  are  no  longer  personally  interested  in  the 
cases  brought  before  them,  their  only  interest  being 
the  public  welfare.  But  the  public  accusation  is 
usually  made  by  the  public  prosecutor.  In  Amer- 
ican law  it  is  made  by  means  of  the  information 
which  is  a  written  accusation  presented  under  oath 
264 


/ 
\ 


PROSECUTION    AND    DEFENSE 

to  a  court  having  jurisdiction  of  the  offense  charged 
therein. 

It  has  been  an  important  question  in  criminal  • 
procedure  whether  accusation  should  be  public  or 
private.  If  it  is  private  then  the  citizen  is  the 
sole  arbiter  of  the  social  function  of  repression. 
This  was  the  case  in  the  system  of  accusation  be-  j 
fore  the  penal  function  had  come  to  be  recognized  • 
as  a  social  function.  But  as  we  have  seen,  this 
proved  to  be  dangerous  to  society  since  many 
crimes  went  unpunished.  On  the  other  hand  it 
may  be  questioned  whether  it  is  safe  to  make  the 
public  prosecutor  the  sole  arbit--  of  the  necessity 
of  action.  The  injured  party  has  the  right  to  take 
civil  action  as  a  guarantee  against  the  negligence 
or  malfeasance  of  the  public  prosecutor.  But  this 
does  not  satisfy  the  claims  of  social  defense  if  a 
crime  has  been  committed.  As  we  have  seen,  in 
France  a  court  of  appeal  can  sometimes  force  a 
public  prosecutor  to  take  action.  Under  certain 
circumstances  a  private  individual  can  do  the  same, 
as  is  the  case  in  Germany  and  in  Austria,1  thus 
forming  a  private  accusation  subsidiary  to  public 
accusation.  Another  check  upon  the  public  pros- 
ecutor is  the  popular  accusation.  But  it  would  not 
be  expedient  to  make  this  form  of  accusation  at  all 
general  for  it  would  result  in  many  ill-advised  and 
malicious  accusations.  It  should  be  limited  to 
crimes  of  very  general  interest  such  as  those 
against  the  freedom  of  thought  and  speech,  the 
abuse  of  public  functions,  etc. 

1 E.   Ferri:  La   sociologie  criminelle,  Paris,    1905,  p.   501. 
265 


CRIMINAL    PROCEDURE 

Should  accusation,  therefore,  be  public  or  private? 
We  have  noted  some  of  the  checks  on  accusation 
by  the  public  prosecutor.  These  are,  however, 
very  slight.  Judicial  surveillance  over  the  public 
prosecutor  is  limited  by  the  danger  of  putting  the 
judiciary  in  the  attitude  of  a  prosecutor,  which  must 
be  carefully  guarded  against.  Subsidiary  private 
accusation  opens  the  door  for  ill  advised  and 
malicious  accusations  and  is  a  tendency  to  revert  to 
the  times  when  punishment  was  private  vengeance. 
Popular  accusation  is  limited  to  a  peculiar  class  of 
offenses  comparatively  few  in  number.  It  is,  there- 
fore, evident  that  it  is  hardly  practicable  to  com- 
bine public  and  private  accusation.  Is  it  then 
necessary  to  return  to  private  accusation  or  to  ac- 
cept an  almost  unmitigated  system  of  public  accu- 
sation? The  first  is  hardly  conceivable.  The 
principle  of  social  defense  is  too  firmly  established 
to  permit  it  and  the  universal  tendency  is  the  other 
way.  The  second  on  the  other  hand  is  accompanied 
by  no  serious  dangers.  A  public  prosecutor  is  not 
likely  to  fail  to  accuse  in  any  case  where  there  is 
any  probability  of  guilt.  His  esprit  de  corps  will 
almost  invariably  lead  him  to  do  so.  As  we  shall 
see,  the  problem  is  rather  to  strengthen  the  means 
of  defense  against  public  prosecution.  Public  ac- 
cusation by  no  means  destroys  the  advantages  of 
private  accusation,  for  the  public  prosecutor  still 
depends  very  largely  on  information  furnished  by 
private  individuals  of  crimes  which  have  been  com- 
mitted. Further  reasons  for  public  accusation  will 
manifest  themselves  in  our  study  of  prosecution. 
266 


PROSECUTION    AND    DEFENSE 

Prosecution  follows  immediately  after  accusa- 
tion. There  is  no  radical  distinction  between  the 
two  -since  both  belong  to  the  same  continuous 
process.  The  distinction  is  one  of  terms  and  is 
made  to  distinguish  two  stages  in  this  process. 
Accusation  is  the  preliminary  stage  and  prosecution 
the  formal  stage.  The  distinction  is  of  value  be- 
cause the  two  may  not  be  carried  on  in  the  same 
manner.  Accusation  may  be  private  and  prosecu- 
tion public.  This  is  in  fact  the  way  in  which  public 
prosecution  has  developed.  It  would,  however, 
hardly  be  possible  for  accusation  to  be  public  and 
prosecution  private  and  it  is  doubtful  if  this  has 
ever  been  the  case. 

Private  prosecution  like  private  accusation  be- 
longs to  the  procedure  of  accusation,  since  it  is  a 
part  of  a  process  between  two  individuals.  As  we 
have  seen,  the  present  tendency  is  away  from  it 
even  in  England,  the  classic  country  of  the  proced- 
ure of  accusation.  It  is  true  that  in  recent  years 
a  number  of  crimes  have  been  created,  mostly  of  a 
commercial  character,  which  must  be  prosecuted 
by  private  individuals  but  these  are  crimes  of  the 
quasi-criminal  type  on  the  border  line  between  civil 
and  criminal  actions  and  it  is  an  open  question 
whether  or  not  they  are  crimes.  A  check  to  the 
ill-advised  or  malicious  use  of  this  right  of  private 
accusation  is  the  right  of  the  injured  party  to  bring 
civil  action  for  damages  and  in  some  of  the  more 
serious  cases  criminal  as  well  as  civil  action. 

Public  prosecution  is,  as  we  have  seen,  a  com- 
bination of  the  procedures  of  accusation  and  of 
267 


CRIMINAL    PROCEDURE 

investigation.    It  is  like  the  procedure  of  accusation 
\     because  the  prosecuting  is  done  by  a  person  other 
than  the  judge.     It  is  like  the  procedure  of  inves- 
tigation  because   the   prosecuting    is   done   in   the 
s  name  and  interests  of  society.     It  makes  of  pro- 
i  cedure  a  process  between  society  and  an  individual 
'  unless  a  corresponding  change  is  made  in  the  de- 
1  fense.     The  manner  in  which  the  public  prosecutor 
'  represents    society    varies    somewhat    in    different 
places.     In  France,  Germany  and  elsewhere  on  the 
Continent   he  is  the  representative  of  the  central 
government.     In  England  various  public  agencies 
prosecute,  such  as  the  police,  the  Solicitor  for  the 
Treasury,  etc.     In  the  United  States  he  is  a  local 
representative,  usually  of  the  county. 

We  have  already  considered  some  of  the  reasons 
for  favoring  public  over  private  prosecution.  The 
discussion  is  in  truth  rather  academic  since  the  uni- 
versal tendency  is  towards  public  prosecution. 
And  as  we  look  towards  the  future  we  see  still  more 
reasons  for  this  tendency.  As  we  have  seen,  the 
tendency  of  to-day  is  towards  the  individualization 
of  punishment.  The  treatment  of  criminals  is  to 
be  determined  more  and  more  by  the  character  of 
the  criminals.  It  is,  therefore,  imperative  that  all 
those  connected  with  the  judicial  system  shall  have 
knowledge  of  the  criminal  character  as  well  as  of 
the  laws.  Especially  important  is  this  for  the  pros- 
ecutor in  order  that  he  may  be  governed  in  taking 
action  against  an  individual  by  the  character  of  the 
individual  to  the  extent  that  it  has  been  revealed 
as  well  as  by  the  crime  of  which  he  is  accused. 
268 


PROSECUTION    AND    DEFENSE 

The  important  question,  therefore,  is  that  of  the 
personnel  of  the  prosecution.  It  is  evident  that 
private  prosecutors  cannot  have  the  special  training 
necessary  to  judge  the  character  of  the  accused. 
It  is  necessary  to  have  a  body  of  public  prosecutors 
with  special  training.  This  training  should  com- 
mence in  the  law  school  with  the  study  of  criminal 
anthropology  and  sociology  in  addition  to  the  study  I 
of  law.  It  should  be  followed  with  practical  ex- 
perience in  prisons  and  in  connection  with  the  police.  ; 
This  question  of  the  special  training  of  the  public 
prosecutor  we  shall  take  up  again  in  the  latter  part 
of  this  book  when  outlining  a  new  system  of  pro- 
cedure. But  another  question  in  connection  with 
the  personnel  of  the  public  prosecution  must  be-, 
spoken  of  here.  It  is  a  well  known  fact  that  the 
effect  of  his  position  on  the  public  prosecutor  is  to 
make  him  regard  every  person  upon  whom  sus- 
picion of  crime  has  fallen  as  guilty.  This  is  a 
natural  result  of  continuous  work  as  a  prosecutor 
but  it  is  a  very  unfortunate  result.  Though  it  is 
the  duty  of  the  public  prosecutor  to  prosecute  every 
case  with  all  the  force  that  the  facts  in  the  case 
justify,  he  should  maintain  an  unbiased  attitude 
towards  those  accused  in  order,  in  the  first  place, 
not  to  be  too  hasty  in  commencing  prosecution  and, 
in  the  second  place,  in  order  to  restrict  himself  in 
the  course  of  the  prosecution  strictly  to  the  facts 
and  not  to  add  to  it  the  force  of  a  purely  personal 
feeling.  Now  it  is  very  evident  that  to  counteract 
this  bias  which  is  bound  to  develop  in  the  course  of 
continuous  prosecution  it  is  necessary  to  put  the 
269 


CRIMINAL    PROCEDURE 

prosecutor  at  times  in  the  position  of  defender. 
This  would  be  possible  only  under  a  system  of  pub- 
lic defense  which  we  shall  discuss  a  little  further 
on. 

We  have  seen  that  under  a  system  of  private  ac- 
cusation and  prosecution  the  accuser  takes  certain 
risks.  If  his  accusation  proves  to  be  unfounded 
he  is  liable  to  a  civil  action  for  damages.  If, 
furthermore,  his  accusation  was  malicious  he  is 
liable  to  criminal  action  as  well.  The  principle  of 
social  defense  fully  justifies  society  in  assuming 
the  right  to  accuse  and  prosecute,  but  the  question 
may  well  be  raised  whether  it  should  not  assume 
also  obligations  corresponding  to  those  assumed 
by  a  private  accuser.  It  would  be  impossible  to 
bring  a  criminal  action  against  society,  but  it  could 
pay  indemnity  to  the  innocent  victim  of  public 
prosecution.  This  principle  has  been  advocated 
again  and  again  for  several  centuries  and  it  is 
doubtful  if  there  are  many  who  would  oppose  it 
to-day  even  among  the  conservatives.  It  might 
be  contended  that  individuals  ought  to  be  willing 
to  endure  this  hardship  for  the  sake  of  society. 
But  the  hardship  certainly  is  too  great  to  demand 
this  sacrifice  from  those  who  are  so  unfortunate  as 
to  fall  under  suspicion  of  crime  and  the  practical 
results  from  it  are  frequently  very  disastrous.  A 
feeling  that  he  has  been  unjustly  treated  remains 
to  rankle  in  the  mind  of  the  victim  and  the  idea 
tends  to  become  prevalent  that  criminal  justice 
is  not  as  just  as  it  is  supposed  to  be.  In  order 
to  counteract  the  spread  of  this  idea — which  is, 
270 


PROSECUTION    AND    DEFENSE 

indeed,  pretty  well  founded — every  possible  means 
should  be  taken  to  indemnify  the  innocent  victim 
of  public  prosecution.  Such  indemnification  should 
be  in  the  first  place  for  those  who  have  been  con- 
demned and  who  may  have  already  served  a  part 
or  the  whole  of  their  sentences  but  who  on  a  revi- 
sion of  the  process  are  found  to  be  innocent.  But 
it  should  be  also  for  those  who  are  acquitted  but 
who  have  suffered  loss  of  time  and  money  and 
mental  anguish  as  a  result  of  being  prosecuted. 
That  such  indemnification  is  perfectly  practicable 
is  indicated  by  the  large  number  of  laws  which 
have  been  passed  providing  to  a  more  or  less  ex- 
tent for  such  indemnification.  Such  laws  have 
been  passed  in  Portugal  in  1884,  in  Switzerland  in 
1886,  in  Denmark  in  1888,  in  Austria  in  1892,  in 
Belgium  in  1894,  in  France  in  1895,  in  Germany 
in  1898  arid  in  1904,  and  in  many  other  countries.1 
We  have  already  discussed  the  German  laws  in  con- 
nection with  the  question  of  preventive  detention,2 
and  have  seen  that  it  is  given  only  when  innocence 
has  been  proved  and  not  when  the  accused  has 
caused  his  own  arrest  and  trial  by  carelessness  or 
on  purpose.  It  is  given  only  for  material  dam- 
ages but  it  is  given  as  a  legal  right  by  the  tribunal 
which  has  acquitted  the  defendant  without  any 
action  on  his  part  being  necessary.  The  practical 
realization  of  reparation  for  judicial  errors  will  un- 
doubtedly be  greatly  aided  by  the  reform  advocated 
by  the  positive  school.  As  Ferri  has  expressed 

1E.  Ferri:  Op.  cit.  pp.  502-504. 
2  See  Chapter  VII. 

271 


CRIMINAL    PROCEDURE 

it,  "it  is  facilitated  above  all  by  the  restriction 
of  penalties  of  imprisonment  which  are  much  em- 
ployed to-day,  and  by  the  more  frequent  use  of 
pecuniary  reparations  under  the  form  of  fines  or 
indemnities,  it  finds  consequently  in  the  repressive 
system  of  the  positive  school  much  more  favorable 
conditions  and  greater  probabilities  of  practical 
realization."1 

Another  principle  which  may  not  be  assented  to 
by  so  many  as  will  assent  to  the  preceding  is  that 
of  reparation  to  the  plaintiff  whenever  injury  has 
been  experienced  as  a  result  of  the  crime.  And  yet 
it  can  be  deduced  very  logically  from  the  principle 
of  public  prosecution,  to  say  the  least,  theoretically. 
Society  has  undertaken  to  protect  its  members  from 
crime.  When  it  fails  to  do  so  it  undertakes  the 
prosecution  and  punishment  of  the  criminal  in 
order  to  protect  society  from  crime  in  the  future. 
But  the  punishment  of  the  criminal  does  not  bene- 
fit the  victim  of  the  crime.  It  does  not  compensate 
him  for  the  injury  he  has  suffered  on  account  of 
society's  failure  to  protect  him.  He  has  only  the 
right  to  commence  a  civil  action  for  damages. 
Since  this  is  a  slow  and  uncertain  process  the  action 
is  in  most  cases  never  started.  But  civil  action  in 
this  case  is  inconsistent  with  the  fundamental 
theory  of  the  civil  law.  This  theory  is  that  a  right 
in  civil  law  is  based  upon  a  contract.  It  is  evident 
that  there  is  no  contract  in  the  case  of  a  crime. 
Such  an  act  is  committed  by  a  criminal  with  vio- 
lence and  without  the  consent  of  his  victim  which 

1  Op.  cit.  p.  502. 

272 


PROSECUTION    AND    DEFENSE 

would  be  necessary  to  form  a  contract.  It  is, 
therefore,  an  integral  part  of  the  system  of  social 
defense  to  guarantee  reparation  to  the  victims  of 
crime.  This  does  not  mean  that  the  State  would 
always  have  to  furnish  the  reparation.  In  the 
majority  of  cases  probably  it  would  be  possible  to 
force  the  criminal  to  make  the  reparation  and  this 
would  be  a  most  effective  form  of  punishment.  A 
suggestion  as  to  such  a  system  is  offered  by  some 
of  the  American  courts  in  which  probation  is 
practised.  The  judge  will  grant  probation  on  con- 
dition that  reparation  is  made  and  the  probation 
officer  supervises  the  payment  of  this  reparation. 
We  have  not  sufficient  space  to  discuss  the  prac- 
tical working  of  such  a  system  but  it  was  necessary 
to  show  its  logical  consistency  with  a  procedure 
based  on  the  principle  of  social  defense. 

Prosecution  and  defense  belong,  as  we  have 
seen,  to  the  procedure  of  accusation.  In  the  pure 
form  of  this  procedure  both  prosecution  and  de- 
fense are  private.  Gradually,  however,  through  the 
influence  of  the  procedure  of  investigation,  prose- 
cution became  public.  But  the  defense  remained  for 
a  long  time  private.  The  helplessness  of  the  defend- 
ant in  the  face  of  an  organized  prosecution  carried 
on  by  trained  prosecutors  became  so  evident  that  in 
the  English  courts  the  judges  began  to  watch  over 
the  interests  of  the  accused  and  became  to  a  cer- 
tain extent  counsel  for  the  defense.  This  state  of 
affairs  is  recognized  in  the  following  passage  from 
Blackstone  in  which  there  is  also  severe  criticism 
of  the  weakness  of  the  defense.  "It  is  a  settled 
18  273 


CRIMINAL    PROCEDURE 

rule  .at  common  law,  that  no  counsel  shall  be  al- 
lowed a  prisoner  upon  his  trial,  upon  the  general 
issue  in  any  capital  crime,  unless  some  point  of  law 
shall  arise,  proper  to  be  debated.  A  rule,  which 
(however  it  may  be  palliated  under  cover  of  that 
noble  declaration  of  the  law,  when  rightly  under- 
stood, that  the  judge  shall  be  counsel  for  the  pris- 
oner; that  is,  shall  see  that  the  proceedings  against 
him  are  legal  and  strictly  regular)  seems  to  be  not 
at  all  of  a  piece  with  the  rest  of  the  humane  treat- 
ment of  prisoners  by  the  English  law.  And  the 
judges  themselves  are  so  sensible  of  this  defect 
that  they  never  scruple  to  allow  a  prisoner  counsel 
to  instruct  him  what  questions  to  ask,  or  even  to 
ask  questions  for  him,  with  respect  to  matters  of 
fact;  for  as  to  matters  of  law  arising  on  the  trial, 
they  are  entitled  to  the  assistance  of  counsel."1 
The  palpable  injustice  of  this  system  led  in  the  first 

-,  half  of  the  nineteenth  century  to  the  extension  of 
this  privilege  of  securing  counsel  to  all  those  prose- 
cuted for  crime  and  for  matters  of  fact  as  well  as 

\  of  law.  So  that  if  a  defendant  has  the  means  to 
employ  counsel  as  able  as  that  employed  by  the 
prosecution  he  is  likely  to  obtain  justice  in  the  trial. 
But  even  in  such  cases  there  are  several  criticisms. 
to  be  made  of  this  system  of  procedure.  As  we 
have  already  noted,  public  prosecution  introduces 
the  underlying  principle  of  the  procedure  of  inves- 
tigation and  throws  the  balance  in  favor  of  society 
415  against  the  individual.  The  defendant  is  then 
left  to  readjust  this  balance  by  his  own  effort. 

1  Commentaries,  Book  IV,  Chap.  25. 
274 


PROSECUTION    AND    DEFENSE 

Furthermore,  it  is  an  axiom  of  the  law  of  evidence 
that  a  person  accused  of  crime  is  persumed  to  be  in- 
nocent until  found  guilty.  But  this  system  violates 
in  practise  this  presumption  of  the  law  of  evidence, 
for  society  does  all  it  can  to  convict  him  but  almost 
nothing  to  secure  for  him  an  adequate  defense. 

If,  however,  a  defendant  is  poor,  as  many  of 
them  are,  he  is  unable  to  secure  counsel  and  the 
balance  remains  in  favor  of  society.  This  system  S 
is,  therefore,  positively  unjust  for  the  poor  defend- 
ant. It  is  true  that  a  form  of  official  defense  is 
provided;  but  this  is,  as  a  rule,  little  better  than  a 
farce.  When  a  defendant  is  unable  to  employ 
counsel  it  becomes  the  duty  of  the  judge  to  assign 
a  lawyer  practising  in  his  court  to  take  charge  of 
the  defense.  The  usual  result  is  that  this  lawyer 
endeavors  to  ascertain  the  financial  resources  of  , 
the  defendant  in  order  to  determine  whether  there 
is  any  possibility  of  securing  a  fee  for  the  services  i 
which  it  is  his  duty  to  perform.  If  there  is  no  such 
possibility  his  wish  is  to  dispose  of  the  case  with 
as  little  trouble  as  possible.  To  do  this  he  tries,  J\ 
first  of  all,  to  persuade  the  defendant  to  plead 
guilty.  If  he  succeeds  he  is  relieved  from  the 
necessity  of  spending  time  and  trouble  in  conduct- 
ing the  trial.  The  defendant,  however,  may  pro-  / 
test  his  innocence  and  insist  upon  a  trial.  The 
lawyer  will  then  give  to  the  preparation  for  the 
trial  as  little  time  as  possible.  He  gives  to  the 
defendant  a  poor  and  weak  defense  in  opposition 
to  the  carefully  prepared  prosecution  of  the  prose- 
cuting attorney.  This  is  great  injustice  to  the 
275 


CRIMINAL    PROCEDURE 

defendant  who  is  so  unfortunate  as  to  be  unable  to 
employ  counsel  and  many  such  defendants  plead 
guilty  rather  than  be  tried  with  so  poor  a  defense. 
In  France  the  counsel  in  these  pauper  cases  is  as- 
signed by  the  president  of  the  bar  association  and 
a  certain  esprit  de  corps  makes  these  French  law- 
yers more  faithful  in  performing  this  task.  But 
even  there  the  standard  of  official  defense  is  much 
below  that  of  private  defense. 

It  is  evident  that  in  order  to  remove  these  evils 
it  is  necessary  to  take  the  next  step  which  is  also 
the  final  one  in  this  historical  development  which 
has  been  bringing  the  efficiency  of  the  defense  up 
towards  that  of  the  prosecution.  This  is  the  estab- 
lishment of  a  system  of  public  defense.  Institu- 
tions have  already  existed  which  suggest  such  a 
system.  The  tribunes  of  ancient  Rome  were  ready 
to  take  the  part  of  a  defendant  in  a  criminal  case, 
thus  helping  to  make  justice  impartial.1  In  Pied- 
mont and  in  Naples  there  used  to  be  an  official 
called  the  "advocate  of  the  poor"  who  acted  as 
counsel  in  all  pauper  cases  and  such  an  official  still 
exists  in  the  city  of  Alexandria  in  Piedmont.2  The 
next  step  is  to  provide  public  defense  for  all  crim- 
inal cases  by  establishing  a  system  of  public  de- 
fense corresponding  to  that  of  public  prosecution 
and  with  equal  powers  and  privileges.  This  is 
probably  the  most  important  and  most  necessary 
reform  in  the  present  system  of  procedure  and  is 
of  the  greatest  significance  for  the  development  of 

1  C.  Lombroso :  Le  crime,  Paris,  1907,  p.  398. 
2E.  Ferri:    Op,  cit,  p.  524. 

276 


PROSECUTION    AND    DEFENSE 

a  new  system  of  procedure  based  on  the  data  of  the 
modern  science  of  criminology. 

We  have  seen  that  the  innocent  victims  of  public 
prosecution  have  the  right  to  demand  indemnifica- 
tion for  the  suffering,  humiliation  and  loss  of  time 
and  money  they  have  undergone  by  being  forced 
to  stand  trial  for  crimes  of  which  they  are  ultimately , 
acquitted.  The  least  that  society  can  do  for  them 
is  to  provide  them  with  adequate  defense.  And 
yet  they  are  left  entirely  to  their  own  resources  to 
secure  this  defense.  If  they  lack  such  resources 
they  are  given  the  existing  form  of  official  defense 
which,  as  we  have  seen,  is  an  utter  failure. 

Public  defense  in  criminal  trials  would  make  it 
much  easier  to  abolish  the  present  vicious  method 
of  allowing  defendants  to  plead  guilty.  This  does 
not  exist  in  Continental  procedures  and  has  re- 
sulted in  a  number  of  very  grave  abuses  in  Anglo- 
American  procedure.  Pleading  guilty  is  permitted 
in  order  to  expedite  the  business  of  the  court.  A 
defendant  in  a  criminal  trial  is  brought  before  the 
bar  and  asked  whether  he  wishes  to  plead  guilty. 
Many  defendants,  through  ignorance  of  court  pro- 
cedure, or,  in  the  case  of  immigrants,  of  the  Eng- 
lish language,  are  incapable  of  understanding  this 
question.  It  frequently  happens  that  one  of  these, 
who  is  not  represented  by  counsel,  will  answer 
affirmatively  to  this  question.  He  will  plead  guilty 
without  knowing  it  and  frequently  without  in- 
tending to  do  so.  This  glaring  miscarriage  of 
justice  can  happen  because  the  defendant  does  not 
have  adequate  representation  in  court.  If  a  public 
277 


CRIMINAL    PROCEDURE 

defender  had  charge  of  the  defense  this  could  never 
happen. 

On  the  other  hand,  experienced  criminals  when 
charged  with  crime  frequently  take  advantage  of 
this  opportunity  to  plead  guilty.  They  will  plead 
guilty  with  the  utmost  alacrity  in  order  to  secure 
the  benefit  of  the  leniency  shown  by  the  law  and  by 
judges  as  a  reward.  It  often  happens  that  a  first 
offender  who  has  stood  trial  and  been  convicted 
will  receive  a  longer  sentence  than  an  old  offender 
who  has  pleaded  guilty  to  the  same  crime.  Such 
grotesque  mistakes  as  these  would  rarely  happen 
if  a  trial  were  held  in  each  case.  In  the  course  of 
the  trial  the  past  record  of  each  defendant  would 
be  thoroughly  exposed  and  it  would  be  possible  to 
judge  according  to  the  character  and  past  record 
_  of  the  criminal.  Public  defense  would  make  it 
much  more  feasible  to  have  a  trial  in  every  case, 
because  the  public  defenders  would  be  ready  to 
prepare  carefully  the  defense  and  guarantee  to  each 
defendant  a  fair  trial. 

This  feature  of  our  present  procedure  tempts  a 
public  prosecutor  to  urge  a  defendant  to  plead 
guilty  in  order  to  save  himself  the  time  and  trouble 
of  prosecuting  the  case.  He  may  threaten  the 
defendant  with  unusually  severe  punishment  if  he 
insists  upon  a  trial.  He  may  offer  to  allow  him 
to  plead  guilty  to  a  lesser  crime  than  the  one  with 
which  he  is  charged.  Or  he  may  offer  to  ask  the 
judge  for  leniency  if  the  defendant  will  plead 
guilty.  As  a  result  poor  and  ignorant  defendants 
are  frequently  frightened  or  coerced  into  pleading 


PROSECUTION    AND    DEFENSE 

guilty.  No  defendant  should  be  made  to  feel  that 
he  is  jeopardizing  his  interests  by  insisting  upon 
a  trial.  The  public  defender  could  shield  the  inno- 
cent defendant  from  the  threats  of  the  prosecuting 
attorney. 

It  may  be  contended  that  the  abolition  of  the 
plea  of  guilty  from  our  procedure  would  increase 
very  greatly  and  to  a  considerable  extent  unneces- 
sarily the  work  of  our  criminal  courts.  In  the 
first  place  the  increase  would  not  be  nearly  as  great 
as  might  be  supposed,  because  the  statement  of  the 
defendant  that  he  is  guilty  would  be  taken  as  testi- 
mony as  in  Continental  procedure  and  would  great- 
ly shorten  and  simplify  the  trial.  Then  in  some 
cases  the  trial  would  prove  that  this  testimony  is 
not  true.  Insanity  or  a  delusion  of  some  sort  makes 
some  defendants  think  themselves  guilty  when  they 
are  innocent.  Sometimes  a  defendant  will  for 
some  hidden  motive  testify  that  he  is  guilty  when 
he  knows  that  he  is  innocent.  A  trial  in  most  of 
these  cases  would  reveal  the  falsity  of  this  testi- 
mony and  would  prevent  the  punishment  of  an  inno- 
cent person  while  in  all  cases  a  trial  would  furnish 
a  better  basis  for  the  individualization  of  punish- 
ment by  revealing  more  fully  the  character  and 
past  record  of  the  criminal. 

Public  defense  would  almost  entirely  eliminate 
the  disreputable  lawyers  who  are  so  frequently  to 
be  found  in  criminal  practise.  The  existence  of 
these  lawyers  is  favored  on  the  one  hand  by  the  pro- 
fessional criminals  who  need  the  services  of  un- 
scrupulous counsel  and  on  the  other  hand  by  the 
279 


CRIMINAL    PROCEDURE 

poor  and  ignorant  defendants  whose  precarious 
situation  makes  them  the  easy  prey  of  such  law- 
yers. With  public  defense,  however,  all  the  cases 
N^  of  the  professional  criminals  and  of  these  poor  and 
ignorant  defendants  would  be  in  the  hands  of  the 
public  defender  so  that  the  field  of  action  of  the 
disreputable  lawyer  would  be  destroyed.  Thus 
public  defense  would  tend  to  purify  the  legal  pro- 
fession. 

The  public  defender  could  do  much  more  effec- 
tive work  than  the  probation  officer.  This  officer 
exists  in  certain  of  the  courts  in  the  states  where 
probation  or  parole  laws  have  been  passed.  His 
work  is  to  prevent  some  of  the  abuses  which  have 
been  described.  As  a  rule  he  can  have  nothing  to 
do  with  a  case  until  the  defendant  has  been  con- 
victed or  has  pleaded  guilty.  He  is  then  directed 
by  the  judge  to  investigate  the  case.  Having 
gathered  as  much  information  as  possible  he  re- 
ports to  the  judge.  He  may  also  make  some 
recommendation  as  to  the  best  method  of  disposing 
of  the  case.  Where  the  prisoner  seems  to  have 
been  convicted  unjustly  or  where  leniency  seems 
desirable,  he  recommends  leniency.  He  may  thus 
prevent  to  a  very  small  extent  some  of  these  abuses. 
But  he  is  greatly  limited  in  his  powers  and  op- 
portunities. His  work  is  done  in  a  more  or  less 
haphazard  and  incidental  manner  and  his  success 
V  depends  largely  upon  the  judges  under  whom  he  is 
Qv  working.  He  is  usually  unable  to  influence  a  case 
until  after  the  greatest  injury  has  been  done  and 
is  then  able  to  alleviate  only  to  a  slight  degree  the 
280 


effects  of  this  injury.  The  public  defender,  on 
the  contrary,  would  have  charge  of  a  case  from  the  > 
very  beginning.  He  could  prevent  all  of  the 
abuses  which  have  been  described.  He  would  not 
allow  a  defendant  to  plead  guilty  unintentionally. 
There  would  no  longer  be  the  conviction  of  inno- 
cent persons  caused  by  the  lack  of  efficient  defense 
by  lawyers  appointed  by  the  judge.  The  work  of 
investigating  the  past  record  of  prisoners  about  to 
be  sentenced,  now  done  by  probation  officers,  could 
be  done  as  well  or  better  by  the  public  defender. 
In  most  cases  he  would  already  have  made  this 
investigation  while  conducting  the  trial.  The  pub- 
lic defender  would  thus  become  the  logical  suc- 
cessor to  the  probation  officer. 

The  public  defender  would  frequently  prevent 
long  delays  in  bringing  cases  to  trial.  These  de- 
lays are  usually  caused  by  the  public  prosecutor 
who  is  looking  for  evidence  of  guilt.  The  public 
defender  would  in  the  meantime  be  searching  for 
evidence  of  innocence  and  would  demand  a  trial  as 
soon  as  he  had  obtained  this  evidence.  Delay  in 
bringing  a  case  to  trial  is  a  great  injustice  to  the 
defendant,  especially  if  he  is  unable  to  give  bail 
and  is  forced  to  wait  in  prison.  The  public  de- 
fender, by  securing  proof  of  innocence,  could  in 
many  cases  prevent  such  delay. 

The  introduction  of  this  system  of  public  de- 
fense would  probably  meet  much  opposition  from 
the  bar.  And  yet  from  the  point  of  view  of  the 
bar  associations  it  should  be  favored  because  of 
the  purification  of  the  profession  by  means  of  the 
281 


CRIMINAL    PROCEDURE 

elimination  of  disreputable  lawyers.  Furthermore, 
many  positions  as  public  defenders  would  be  created 
which  would  go  to  the  better  class  of  lawyers  and 
a  certain  amount  of  the  better  kind  of  criminal 
practise  would  still  remain.  Public  defense  would 
not  necessarily  destroy  all  private  criminal  practise. 
Defendants  would  still  have  the  privilege  of  employ- 
ing private  counsel  if  they  so  desired.  It  is  im- 
possible to  determine  at  present  whether  it  would 
ever  be  well  for  the  public  defender  to  allow  a  case 
to  go  entirely  out  of  his  hands.  It  might  be  well 
for  him  to  have  supervision  in  every  case.  The 
private  counsel  could  then  co-operate  with  him  in 
defending  the  case.  Thus  public  defense  would 
leave  a  large  field  for  honorable  and  dignified 
practise,  either  as  a  public  defender  or  as  a  private 
counsellor. 

Public  defense  would  destroy  most  of  the  oppo- 
sition which  lawyers  now  make  to  reforms  in  crim- 
inal procedure,  an  opposition  which  grows  out  of 
the  fear  that  these  reforms  will  limit  their  field  of 
practise.  Since  this  one  reform  of  public  defense 
would  fully  realize  this  fear  they  would  no  longer 
have  any  further  interest  in  opposing  other  reforms. 
Thus  one  great  obstacle  in  the  way  of  reforms 
would  be  removed. 

So  far  we  have  been  discussing  public  defense 
with  regard  to  the  present  system  of  procedure 
and  it  can  hardly  be  questioned  that  this  is  the 
most  necessary  reform  in  the  existing  procedure. 
But  it  is  also  of  the  greatest  significance  for  the 
development  of  the  procedure  of  the  future.  A 
282 


PROSECUTION    AND    DEFENSE 

fundamental  principle  of  this  procedure  will  be  the 
individualization  of  punishment.  But  in  order  to 
individualize  it  is  necessary  that  those  who  conduct 
the  procedure  shall  be  able  to  estimate  at  their  true 
value  the  data  which  are  accumulated  with  regard 
to  the  criminals.  It  is  absolutely  essential  that  the"'] 
prosecutor  and  defender  who  accumulate  and  pre- 
sent the  evidence  shall  recognize  the  data  which 
are  significant  and  shall  present  them  most  effect- 
ively. To  accomplish  this  it  is  necessary  that  they 
should  have  training  in  criminal  anthropology  and 
sociology.  So  long  as  private  defense  exists  it  will 
be  impossible  to  require  this  training  of  the  de- 
fenders or  at  least  only  to  a  slight  extent.  But 
with  public  defense  it  will  be  possible  to  give  both 
prosecutors  and  defenders  a  thorough  training. 
This  training  would  begin  with  specialization  in 
criminological  science  in  the  law  schools  by  those  v 
who  wished  to  prepare  for  criminal  .practise.  Al- 
ready in  a  number  of  Continental  law  schools  such 
courses  have  been  introduced  for  those  who  expect 
to  specialize  in  criminal  practise  and  it  is  only  neces- 
sary to  make  these  courses  obligatory,  which  would 
be  possible  if  public  defense  existed.  The  theo- 
retic study  in  the  law  school  would  be  supple- 
mented by  practical  study  in  connection  with  the 
police  where  the  student  would  assist  in  the  work 
of  gathering  and  classifying  evidence  and  in  the 
prisons  in  close  touch  with  the  criminals  themselves. 
After  this  clinical  study  he  would  be  ready  to 
enter  practise  either  as  a  prosecutor  or  as  a  de- 
fender. It  would  probably  be  better  in  order  to 
283 


CRIMINAL    PROCEDURE 

'  avoid  any  possible  bias  against  the  defendant  that 
the  young  advocate's  first  duties  should  be  as  a 
defender.  But  a  period  of  service  as  defender 
would  be  followed  by  a  similar  period  as  prose- 
cutor and  this  alternation  between  the  two  offices 

:  would    be    continued.     This    interchange    between 

s  the  personnel  of  the  prosecution  and  of  the  defense 
would  give  a  wide  experience  to  all  the  members 
of  the  criminal  bar  and  would  prevent  the  bias 
which  now  tends  to  develop  either  for  or  against 
the  defendant  through  exclusive  work  either  for 
the  defense  or  for  the  prosecution. 

In  the  latter  part  of  this  book  will  be  outlined  a 
new  system  of  procedure  in  which  the  criminal  bar 
will  be  a  preliminary  and  necessary  step  to  the 
criminal  bench  and  in  this  procedure  public  de- 
fense will  be  an  integral  and  necessary  part. 

It  may  be  contended  that  if  both  prosecution  and 
defense  are  to  be  conducted  by  public  officials  this 
opposition  between  the  two  sides  might  as  well  be 
abolished  and  the  procedure  be  conducted  by  one 
group  of  officials  who  will  judge  impartially.  This 

,  would  be  a  return  to  the  procedure  of  investigation 
whose  underlying  theory,  as  we  have  seen,  is  quite 
in  harmony  with  the  principle  of  social  defense. 

J  it  is  true  that  public  prosecution  and  public  de- 
fense are  both  of  them  social  functions  and  repre- 
sent the  same  social  interests.  But  for  practical 
reasons  the  contradictory  feature  of  the  procedure 
of  accusation  has  been  introduced  into  a  procedure 
based  upon  a  principle  similar  to  that  of  the  pro- 
cedure of  investigation.  The  practical  utility  of 


PROSECUTION    AND    DEFENSE 

this  opposition  between  the  prosecution  and  the  de- 
fense  is  well   expressed   in   the   following  passage^ 
from  Ferri :  "The  defense  and  the  accusation  must   ! 
therefore  be,  the  one  as  much  as  the  other,  social  j 
functions,  entrusted  to  different  functionaries  only  ' 
because  it  is  a  cerebral  impossibility  for  the  same   \ 
man  in   the  same  process  to  present  equally  the 
proofs   for  the  accusation  and   those   for  the  de- 
fense."1    Hence  so  long  as  the  contradictory  fea- 
ture  has  practical  utility  this   opposition  between 
prosecution  and  defense  should  remain  in  procedure. 

There  are,  however,  a  few  comments  and  criti-  ^ 
cisms  to  be  made  of  the  contradictory  debate  as  it 
exists  to-day.  The  trial  of  to-day  is  still  too  much 
of  a  forensic  duel  in  which  the  principal  question 
is  who  will  win.  The  true  functions  of  a  trial  are 
to  reveal  evidence  and  to  furnish  a  practical  con- 
clusion. To  perform  these  functions  well  it  isj- 
necessary  to  strengthen  those  elements  in  our  crim- 
inal  courts  which  desire  the  investigation  of  truth 
and  not  those  which  are  interested  in  winning  a 
case.  We  have  seen  how  public  defense  will  tend 
in  this  direction  by  removing  a  counsel's  personal 
interest  in  one  side  of  a  case,  by  preventing  Che  de- 
velopment through  habit  of  a  bias  on  one  side,  and 
by  increasing  by  means  of  special  training  a  coun- 
sel's ability  to  appreciate  what  is  significant  and 
true  in  the  evidence.  In  the  following  chapter  on 
evidence  and  also  in  later  chapters  on  the  jury  and 
the  judiciary  will  be  discussed  further  means  which 
will  help  to  bring  about  this  change. 

1  Op.  cit.  p.  524. 

285 


I 


CRIMINAL    PROCEDURE 


The  contradictory  debate  is  useful  for  the  presen- 
tation and  exposition  of  evidence,  but  there  is 
danger  of  introducing  the  contradictory  element 
too  soon  into  the  process.  In  the  preliminary  ex- 
amination the  principal  object  is  the  accumulation 
of  evidence  and  as  a  rule  this  can  be  best  ac- 
complished by  one  impartial  person.  In  this  respect 
the  Continental  procedure,  with  its  "juge  d'instruc- 
tion"  who  conducts  this  examination  unhampered 
by  the  two  opposing  sides,  is  superior  to  the  Anglo- 
American  procedure,  for  in  English  and  American 


police  courts  there  is  a  tendency  for  the  contradic- 
tory element  to  creep  in  and  to  turn  the  prelimi- 
nary examination  away  from  its  true  function  of 
accumulating  evidence. 

The  contradictory  debate  is  useful  for  arriving 
at  a  practical  conclusion,  because  it  furnishes  the 
most  effective  basis  for  the  formation  of  convic- 
tion. It  is  hardly  possible  for  a  single  mind  to  go 
over  all  the  data  of  a  case  and  arrive  at  a  definite 
conviction  when  these  data  are  very  complex  and 
are  not  sufficiently  complete  to  afford  scientific  ac- 
curacy, as  is  the  case  in  most  criminal  trials.  It 
is,  therefore,  necessary  to  have  the  evidence  on 
each  side  presented  in  as  striking  a  manner  as  pos- 
sible to  the  unbiased  mind  of  the  judge,  in  order  that 
he  may  weigh  the  evidence  quickly  and  come  to  a 
definite  decision.  So  that  prosecution  and  defense 
will  probably  remain  in  criminal  procedure  for  a 
long  time  and  perhaps  always. 


2P6 


CHAPTER  IX 

EVIDENCE 

The  subject  of  central  importance  in  procedure 
is  evidence.  The  object  of  a  criminal  trial  is  to 
gather,  examine  and  judge  evidence  and  the  study 
of  procedure  is  the  study  of  the  best  means  by  which 
this  can  be  accomplished.  It  is,  of  course,  true 
that  the  ultimate  object  of  procedure  is  to  defend 
society  against  crime.  But  in  order  to  attain  this 
object  of  social  defense  it  is  necessary  to  prove  cer- 
tain facts  as  to  the  commission  of  a  crime  and 
about  the  person  who  has  committed  it.  To  ar- 
rive at  this  proof,  evidence  must  be  gathered,  ex- 
amined and  judged.  Consequently  the  larger  part 
of  the  mechanism  of  procedure  is  devoted  to  this 
work. 

It  will  be   possible   to   discuss  only  briefly  the     ^ 
history  of  evidence.     Ferri1   divides  the  evolution      \ 
of  proof  into  five  stages.     The  first  stage  is  the 
primitive  stage,  when  the  naive  empiricism  of  per- 
sonal   impressions    determined    what    was    proof. 
The  second  was  the  religions  stage,  in  which  divin- 
ity was  invoked  by  means  of  the  ordeal,  the  judicial 
duel,   etc.,   to    furnish   proof.     The  third   was   the 

*E,  Ferri:  La  sociologie  criminelle,  Paris,  1905. 
287 


CRIMINAL    PROCEDURE 

legal  stage,  in  which  the  value  of  different  kinds 
of  proof  and  the  quantity  necessary  for  a  decision 
was  fixed  by  law.  In  this  stage,  torture  was  much 
used  in  order  to  secure  the  confession  of  guilt  of 
the  accused,  which  was  considered  the  best  proof. 
The  present  stage  is  the  sentimental  stage,  in  which 
proof  is  judged  by  the  conscience  of  the  judge  or 
juror,  a  profound  conviction  of  the  truth  of  one 
side  or  the  other  being  the  determining  motive. 
The  fifth  stage,  which  is  just  commencing,  is  the 
scientific  stage,  in  which  evidence  will  be  judged 
according  to  scientific  standards,  which  have  been 
derived  from  the  exhaustive  study  of  a  large 
amount  of  data.  For  the  proof  of  the  commission 
of  the  criminal  act  there  will  be  physical,  chemical, 
mechanical,  calligraphic,  toxicological,  etc.,  proofs 
while  for  determining  the  character  of  the  criminal 
there  will  be  anthropological,  psycho-pathological 
and  sociological  proofs.  Tarde  gives  a  similar 
classification  of  the  stages  in  the  evolution  of  proof, 
namely,  the  religious,  legal,  political,  and  scientific 
stages.1 

But  these  classifications  apply  more  particularly 
to  the  evolution  of  proof  in  Continental  proced- 
ures, while  the  evolution  in  Anglo-Saxon  proced- 
ure has  been  somewhat  different,  especially  in  the 
present  stage,  which  Ferri  calls  the  sentimental  and 
Tarde,  the  political  stage.  Anglo-Saxon  procedure 
has  developed  a  very  elaborate  law  of  evidence, 
.which  is  one  of  its  distinguishing  features.  This 
body  of  rules  with  regard  to  evidence  furnishes 

1  La  philosophie  penale,  Paris,  1890. 
288 


EVIDENCE 

some  legal  determination  to  proof,  so  that  it  is 
not  left  entirely  to  the  private  conviction  of  the 
judge  or  jurior.  On  account  of  the  higher  develop- 
ment of  the  English  law  of  evidence,  it  will  be 
necessary  to  study  that  first. 

A  well-known  writer  on  this  subject  speaks  of 
it  as  follows :  "The  system  known  in  practise  by 
the  title  of  'The  Law  of  Evidence,'  began  to  form 
about  the  middle  of  the  seventeenth  century — at 
least  this  is  sufficiently  accurate  for  a  general  view. 
The  characteristic  feature  which  distinguishes  it, 
both  from  our  own  ancient  system  and  those  of 
most  other  nations,  is,  that  its  rules  of  evidence, 
both  primary  and  secondary,  are  in  general  rules 
of  law;  which  are  not  to  be  enforced  or  relaxed  at 
the  discretion  of  judges,  but  are  as  binding  on  the 
court,  juries,  litigants,  and  witnesses  as  the  rest  of 
the  common  law  and  statute  law  of  the  land,  and 
that  it  is  only  in  the  forensic  procedure  which  reg- 
ulates the  manner  and  order  of  offering,  accepting 
and  rejecting  evidence,  that  a  discretionary  power, 
and  even  that  a  limited  one,  is  vested  in  the  bench."1 
This  indicates  the  extent  to  which  the  private  con- 
viction of  the  judge  and  juror  is  limited  and  re- 
stricted by  this  law  of  evidence. 

But  while  it  may  be  true  that  the  English  law  of 
evidence  began  to  form  in  the  seventeenth  century, 
its  origin  is  much  older.  "The  truth  seems  to  be, 
that  while  'The  Law  of  Evidence'  is  the  creation  of 
comparatively  modern  times,  most  of  the  leading 

1W.   M.   Best:    The  Principles   of  the  Law  of  Evidence, 
London,    1906,    loth    edition,   p.    99. 
19  289 


CRIMINAL    PROCEDURE 

principles  on  which  it  is  founded  have  been  known 
and  admitted  from  the  earliest."1  The  evolution  of 
the  law  of  evidence  has  been  very  slow  and  has  come 
principally  by  means  of  the  rulings  of  judges  and 
not  by  legislation.  "The  slow  development  of  the 
law  of  evidence,  compared  with  that  of  the  other 
branches  of  our  jurisprudence,  seems  a  natural 
consequence  of  the  general  principle  that  in  every 
nation  the  substantive  rules  of  law  arrive  at  ma- 
turity before  the  adjective."2 

The  principal  cause  for  the  higher  development 
of  the  law  of  evidence  in  the  English  procedure 
than  in  other  procedures  is  the  jury.  As  we  shall 
see  in  the  following  chapter,  the  English  jury  was 
originally  a  body  of  witnesses  who  gradually  de- 
veloped into  judges  of  fact.  Inasmuch  as  jurors 
are  comparatively  ignorant  of  law  and  procedure 
and  are  inexperienced  in  receiving  and  judging 
evidence,  the  judges  found  it  necessary  to  regulate 
the  kind  of  witnesses  which  are  to  testify  before 
the  jury  and  also  to  direct  its  members  to  a  certain 
extent  as  to  the  manner  in  which  they  were  to  judge 
this  testimony.  In  other  words,  it  was  necessary 
for  the  judges  to  protect  the  jury  as  much  as  pos- 
sible against  the  mistakes  due  to  its  ignorance  and 
inexperience.  Out  of  the  many  cases  in  which  the 
judges  did  so  grew  a  body  of  more  or  less  uniform 
rules  of  evidence.  As  the  independence  of  the 
judges  increased,  these  rules  became  more  and 
more  authoritative  until  they  were  as  binding  as 

JW.  M.  Best:  Op.  cit.  p.  93. 

*  W.  M.  Best :  Op.  cit.  p.  102. 

290 


EVIDENCE 

the  common  or  statute  law.  The  intimate  connec- 
tion between  the  English  law  of  evidence  and  the 
jury  will  be  very  evident  throughout  our  study  of 
this  subject.  The  undeveloped  state  of  the  law  of 
evidence  in  Continental  procedure  is  therefore 
easily  accounted  for  by  the  absence  of  the  jury  un- 
til after  the  French  Revolution. 

We  will  now  state  briefly  the  fundamental  prin- 
ciples of  the  English  law  of  evidence,  which  will 
furnish  a  basis  for  a  study  of  the  whole  subject  of 
evidence. 

There  are  several  classifications  of  the  different 
kinds  of  evidence.  Perhaps  the  most  important  is 
that  of  direct  and  indirect,  inferential,  or  circum- 
stantial evidence.  The  first  is  evidence  derived 
from  actual  observation  or  testimony  of  persons 
who  have  a  knowledge  derived  from  actual  obser- 
vation. The  second  is  evidence  derived  by  infer- 
ence from  other  facts  which  have  been  actually 
observed  or  are  established  by  testimony.  Circum- 
stantial evidence  is  admissible  and  may  be  equally 
conclusive  with  direct  evidence,  but  the  tendency 
is  to  rate  circumstantial  evidence  at  a  lower  value 
than  direct  evidence. 

Another  classification  of  evidence  is  into  mate- 
rial and  relevant  facts.  A  material  fact  is  one 
which,  when  proved,  determines  some  question  in 
the  issue  to  be  considered  and  decided  by  the  jury. 
A  relevant  fact  is  one  from  which,  when  proved,  a 
material  fact  may  be  legally  inferred.  Facts  which 
are  neither  material  nor  relevant  are  excluded  from 
291 


CRIMINAL    PROCEDURE 

the  consideration  of  the  jury  and  evidence  con- 
cerning them  is  inadmissible. 

Facts  judicially  noticed  are  certain  facts  which 
are  presumed  by  the  law  to  be  personally  known  to 
the  judge  and  jury.  These  are  classified  as  politi- 
cal, legal  and  official  facts,  public  history,  natural 
history,  and  the  vernacular  language.  The  courts 
take  judicial  notice  of  these  facts  and  regard  them 
as  established  without  further  proof. 

Evidence  is  classified  with  regard  to  its  form  as 
written  and  oral.  Written  evidence  consists  of 
public  and  judicial  records,  deeds,  bonds,  etc.  It 
is  admissible  whenever  the  fact  in  question  is  the 
existence  of  the  document  itself  or  whenever  the 
contents  of  the  document  are  legally  sufficient  to 
establish  some  material  or  relevant  fact.  Oral 
evidence  consists  of  the  viva  voce  testimony  of  a 
witness  who  has  been  sworn.  It  is  admissible  only 
when  the  witness  can  testify  from  personal  knowl- 
edge as  to  the  existence  or  non-existence  of  some 
material  or  relevant  fact,  or  when  he  is  called  to 
give  expert  testimony. 

Evidence  with  regard  to  a  written  document  is 
classified  as  primary  and  secondary.  The  docu- 
ment itself  is  primary  evidence  of  its  existence  and 
contents.  Copies  and  oral  evidence  with  regard 
to  it  are  secondary  evidence  and  secondary  evidence 
is  inadmissible  whenever  primary  evidence  can  be 
produced. 

A  witness  is  not  allowed  to  testify  to  statements 
made  to  him  or  in  his  presence  by  other  persons. 
There  are  a  few  exceptions  to  this  rule  which  we 
292 


EVIDENCE 

have  not  space  to  state.  The  exclusion  of  this  kind 
of  evidence  called  hearsay  is  a  distinguishing  feat- 
ure of  the  English  law  of  evidence. 

No  evidence  against  the  character  of  the  accused 
can  be  given,  except  in  reply  to  evidence  as  to  his 
character  in  his  favor  which  has  been  introduced 
first. 

The  voluntary  confession  of  the  accused,  when 
made  without  fear  or  hope  of  favor,  is  admissible 
as  evidence  against  him. 

Any  person,  who  understands  and  recognizes 
the  obligations  of  an  oath,  is  a  competent  witness, 
unless  disqualified  by  certain  circumstances  speci- 
fied by  law.  Formerly,  those  who  had  been  con- 
victed of  certain  infamous  crimes  and  those  who 
had  an  interest  in  the  case  were  disqualified,  but 
now  these  circumstances  are  regarded  as  affecting 
the  credibility  rather  than  the  competency  of  a 
witness. 

The  admissibility  of  evidence  is  to  be  determined 
by  the  judge  according  to  the  law  of  evidence  or, 
when  the  law  does  not  specify,  according  to  his  own 
discretion. 

The  sufficiency  and  weight  of  evidence  are  usu- 
ally determined  by  the  jury.  From  certain  classes 
of  facts,  however,  the  law  conclusively  infers  the 
existence  or  non-existence  of  other  facts,  and  the 
jury  is  therefore  compelled  to  find  the  latter  when- 
ever the  former  have  been  proved.  From  certain 
other  classes  of  facts  the  law  infers,  but  not  con- 
clusively, the  existence  or  non-existence  of  other 
facts,  and  the  jury  is  compelled  to  find  the  latter 
293 


CRIMINAL    PROCEDURE 

only  when  the  former  have  been  proved  and  when 
the  inference,  which  the  law  usually  derives  there- 
from, has  not  been  rebutted.  These  inferences 
are  called  presumptions  of  the  law. 

The  presumption  of  the  law  that  the  accused  is 
innocent  until  proved  to  be  guilty  which  has  al- 
ready been  discussed  in  the  chapter  on  criminal 
law  has  a  good  deal  of  significance  for  the  law  of 
evidence.  It  results  in  the  principle  that  guilt  must 
be  proved  beyond  a  reasonable  doubt  and  that  the 
evidence  must  be  such  as  to  exclude  every  reason- 
able hypothesis  but  guilt.  Furthermore  the  corpus 
delicti  must  be  established  by  evidence  other  than 
the  extra  judicial  admissions  of  the  accused. 

Leading  questions,  suggesting  the  desired  answer 
to  the  witness,  may  be  employed  only  in  the  cross- 
examination. 

The  burden  of  proof  rests  on  the  affirmative 
which  may  be  the  plaintiff  or  the  defendant  ac- 
cording to  the  nature  of  the  issue. 

When  a  specific  intent  is  alleged  in  the  indict- 
ment it  must  be  proved  as  laid. 

Formerly  the  accused  could  not  testify.  But 
for  some  time  past  it  has  been  permitted  in  Amer- 
ican procedure  and  the  English  "Criminal  Evidence 
Act"  of  1898  made  it  possible  in  English  courts. 
If,  however,  the  accused  offers  his  testimony  the 
opposing  side  has  the  privilege  of  asking  questions 
regarding  his  conduct  and  character  which  could 
not  otherwise  be  asked. 

This  brief  summary  of  the  fundamental  principles 
of  the  English  law  of  evidence  gives  some  idea  of  its 
294 


EVIDENCE 

character.  Its  characteristic  features  have  been 
stated  as  follows:  "The  characteristic  features  of 
the  English  common  law  system  of  judicial  evi- 
dence, like  those  of  ever}7  other  system,  are  essen- 
tially connected  with  the  constitution  of  the  tribunal 
by  which  it  is  administered,  and  may  be  stated  as 
consisting  of  three  great  principles:  I.  The  admis- 
sibility  of  evidence  is  matter  of  law,  but  the  weight 
or  value  of  evidence  is  matter  of  fact.  2.  Matters 
of  law,  including  the  admissibility  of  evidence,  are 
proper  to  be  determined  by  a  fixed,  matters  of  fact 
by  a  casual,  tribunal;  but  this  is  a  principle  which 
found  little  favour  with  the  Court  of  Chancery, 
and  has  gradually  become  a  less  integral  part  of 
the  whole  English  system.  3.  In  determining  the 
admissibility  of  evidence,  the  production  of  the 
best  evidence  should  be  exacted."1 

A  number  of  comments  upon  and  criticisms  of 
this  law  of  evidence  may  be  made  from  the  posi- 
tive point  of  view,  which  will  prepare  the  way  for 
an  exposition  of  a  scientific  system  of  evidence  in 
the  latter  part  of  this  chapter. 

As  we  have  already  noted,  the  tendency  is  to 
rate  circumstantial  below  direct  evidence.  This 
tendency  has  probably  grown  out  of  the  feeling 
that  it  is  dangerous  to  allow  jurors  to  base  their 
conclusions  upon  inferences  drawn  from  circum- 
stantial evidence.  But  this  does  not  mean  that  cir- 
cumstantial evidence  is  any  less  valuable  or  any 
less  reliable  than  direct  evidence.  As  a  matter 
of  fact,  it  is  sometimes  the  only  evidence  and 

*W.  M.  Best:    Op.  cit.  p.  66. 
295 


CRIMINAL    PROCEDURE 

frequently  the  best  evidence  available  and  it  is 
more  reliable  than  direct  evidence  because  things 
cannot  lie  while  witnesses  frequently  do,  consciously 
or  unconsciously,  as  we  shall  see  when  studying 
the  psychology  of  testimony.  What  is  needed  is 
a  trained  judge  who  will  know  the  true  significance 
of  a  piece  of  circumstantial  evidence  and  will 
draw  the  correct  inferences  therefrom.  The  juror, 
inexperienced  in  these  matters,  may  easily  draw 
the  wrong  inferences  and  this  prejudice  against 
circumstantial  evidence  has  grown  up  in  his  de- 
fense. But  the  juror  is  liable  to  similar  dangers 
in  receiving  direct  evidence,  for  the  witness  is  likely 
to  make  mistakes  and  it  is  frequently  necessary  to 
infer  from  testimony.  Here  again  is  needed  the 
trained  judge  to  estimate,  on  the  basis  of  a  knowl- 
edge of  the  psychology  of  testimony,  the  true  value 
of  the  testimony  and  to  draw  the  correct  inferences 
therefrom.  Furthermore  the  legitimacy  of  this  dis- 
tinction between  direct  and  indirect  or  circumstan- 
tial evidence  may  be  questioned.1  This  so-called 
indirect  circumstantial  evidence  is  sometimes  the 
most  direct  evidence  which  could  be  obtained  with 
regard  to  a  crime,  for  it  is  a  record  which  the 
things  themselves  bear  of  the  act  committed,  while 
testimony  is  at  best  a  second-hand  record.  At  any 
rate  it  should  be  remembered  that  circumstantial 
evidence  is  not  necessarily  any  less  valuable  than 
direct  evidence,  but  that  on  the  contrary  it  is  fre- 
quently equal  to  or  worth  more  than  direct  evidence. 

1J.  F.  Stephen:  A  General  View  of  the  Criminal  Law  of 
England,  London,  1890,  Ch.  XVI. 
296 


EVIDENCE 

Consequently  its  utility  should  not  be  lessened  on 
account  of  this  prejudice.  Circumstantial  evidence 
should  not  be  excluded  or  subordinated  to  direct 
evidence,  but  should  be  judged  by  trained  judges. 
The  exclusion  of  hearsay  evidence  is  one  of  the 
distinguishing  features  of  the  English  law  of  evi- 
dence, since  such  evidence  is  very  generally  admitted 
in  Continental  procedure.  This  exclusion  is  in  ac- 
cordance with  the  object  of  English  rules  of  evi- 
dence "to  provide  that  conclusions  in  judicial  cases 
should  be  founded  on  solid  grounds."1  Fraud  can 
be  introduced  in  hearsay  evidence  and  its  presence 
detected  with  much  greater  difficulty  than  in  direct 
or  circumstantial  evidence.  Testimony  about  per- 
sons not  parties  to  the  suit  can  be  introduced  and 
their  characters  blackened  gratuitously  and  fre- 
quently unjustly.  In  French  trials  witnesses  of 
hearsay  evidence  are  frequently  introduced  be- 
cause they  can  speak  well,  though  their  testimony 
may  be  worthless  or  even  harmful.2  Inexperienced 
persons  easily  mistake  suspicion  for  proof  and  i  / 
since  doubt  is  always  unwelcome  there  is  danger  \  V— . 
of  jumping  at  conclusions  from  hearsay  evidence. 
This  is  the  great  reason  for  guarding  the  jury 
against  hearsay  evidence.  But  notwithstanding 
all  these  dangers  it  is  true  that  very  valuable  in- 
formation can  be  derived  from  hearsay  evidence 
which  cannot  be  secured  in  any  other  way.  The 
question,  therefore,  may  be  raised  whether  with 
proper  restrictions  and  with  trained  judges  to 

1 J.  F.  Stephen :    Op.  cit.  Ch.  XVI. 
2  Jean  Cruppi :  La  cour  d'assises,  Paris,  1898. 
297 


estimate   its  value,  more  use  cannot  be  made  of 
hearsay  evidence. 

The  common  law  has  protected  very  jealously 
the  character  of  the  accused.  Until  the  accused 
was  permitted  to  testify  when  he  chose  to  do  so  it 
was  not  possible  to  introduce  any  evidence  with  re- 
gard to  his  character.  When  the  decision  depends 
upon  credibility  the  character  of  the  accused  must 
have  a  great  deal  of  weight  at  least  with  regard  to 
his  desire  to  tell  the  truth.  The  question  may  be 
raised  whether  the  accused  ought  not  to  testify  in 
every  case  since  he  is  as  a  rule  the  best  informed 
witness  about  the  point  at  issue.  If  he  is  innocent 
his  appearance  and  manner  of  testifying  is  fre- 
, .  quently  the  strongest  force  in  his  favor.  The  pro- 
tection of  the  character  of  the  accused  by  the 

* 

•  common  law  was,  however,  well-founded  since  in 
the  first  part  of  a  trial  the  point  at  issue  is  a  fact, 
namely,  the  commission  of  a  crime  and  not  the 
character  of  the  accused  though  this  becomes  of 
great  importance  if  the  accused  is  found  guilty. 
Furthermore  the  fact  that  the  accused  cannot  be 
questioned  unless  he  wishes  it  stimulates  the  search 
for  evidence  by  the  prosecution.1 

Rules  with  regard  to  the  competency  of  witnesses 
are  to  be  found  in  nearly  every  system  of  procedure 
and  are  intended  to  guard  against  the  introduction 
of  unreliable  testimony.  "As  the  reception  of, 
and  credit  attached  to  the  statements  of  witnesses 
by  courts  of  justice,  rest  on  the  natural,  if  not  in- 
stinctive, belief  which  is  found  to  exist  in  the  human 

1J.  F.  Stephen:    Op.  cit. 

298 


EVIDENCE 

mind,  in  the  general  veracity  of  human  testimony, 
especially  when  guarded  by  the  sanction  of  an  oath, 
it  follows  that  all  testimony  delivered  under  that 
sanction,  and  perhaps  even  without  it,  ought  to  be 
heard  and  believed,  unless  special  reason  appears 
for  doubt  or  disbelief.  And  here  arises  a  leading 
distinction  which  runs  through  the  judicial  evi- 
dence of  this  and  most  other  countries;  namely, 
that  in  some  instances  the  special  reason  is  so 
obvious  that  the  law  deems  it  safer  to  reject  the 
testimony  of  the  witness  altogether;  while  in  others 
it  allows  the  witness  to  make  his  statement,  leaving 
its  truth  to  be  estimated  by  the  tribunal.  This  is 
the  distinction  taken  in  our  books  between  the 
competency  and  the  credibility  of  witnesses.  A 
witness  is  said  to  be  incompetent  to  give  evidence, 
when  the  judge  is  bound  as  matter  of  law  to  reject 
his  testimony,  either  generally  or  on  some  partic- 
ular subject;  in  all  other  cases  it  is  to  be  received, 
and  its  credibility  weighed  by  the  jury."1 

The  presence  of  the  jury  in  the  English  proced- 
ure has  made  the  rules  with  regard  to  the  compet- 
ency of  witnesses  of  great  importance.  The  jury 
has  been  guarded  against  being  unduly  influenced 
by  unreliable  testimony  or  testimony  whose  signifi- 
cance is  not  wholly  obvious,  by  the  exclusion  of 
certain  classes  of  witnesses  But  the  question  has 
been  raised  whether  valuable  evidence  is  not  fre- 
quently lost  on  account  of  this  exclusion  and 
whether  it  would  not  be  better  to  exclude  not  the 
witnesses  but  certain  kinds  of  testimony  which  may 

1W.  M.  Best:  Op  cit.  pp.  124-123. 
299 


CRIMINAL     PROCEDURE 

be  offered  by  them.  "Another  plan,  resorted  to  by 
the  laws  of  most  nations  for  guarding  against  mis- 
decisions,  consists  in  the  repudiation  as  witnesses 
of  persons  whose  testimony,  either  from  personal 
interest  in  the  matter  in  dispute,  or  other  visible 
cause,  seems  likely  to  prove  untrustworthy.  This 
is  the  recusatio  testis  of  the  civilians,  as  distin- 
guished from  the  recusatio  judicis,  or  challenge  of 
the  judge,  and  in  our  law  is  called  The  Incom- 
petency  of  Witnesses.'  Its  policy,  however,  has 
been  seriously  doubted,  even  fiercely  attacked,  in 
modern  times ;  and  much  has  been  said  and  written 
on  both  sides  of  the  question.  Perhaps  the  true 
view  of  this  matter  is  that  the  principle  of  repudia- 
tion should,  at  least  in  general,  be  confined  to  pre- 
appoin-ted  evidence.  There  is  a  great  difference 
between  the  rejection  of  evidence  and  the  rejection 
of  witnesses.  Evidence  may  fairly  be  rejected 
when  it  is  so  remote  that,  to  allow  tribunals  to  act 
on  it,  would  invest  them  with  dangerous  or  un- 
constitutional power;  or  when  being  derivative,  in- 
stead of  original,  its  very  production  carries  the 
impress  of  si  fraudulent  suppression  of  better  evi- 
dence ;  or  when  its  disclosure  would  be  against  pub- 
lic policy.  But  the  testimony  of  casual  witnesses 
to  a  fact — i.  e.,  of  persons  who  have  incidentally 
witnessed  it — comes  under  none  of  these  heads. 
Such  witnesses  are  the  original  depositories  of  the 
evidence;  and  in  many  cases  the  exclusion  of  their 
testimony  would  be  to  exclude  all  attainable  evi- 
dence on  the  question  in  dispute,  and  to  offer,  by 
impunity,  a  premium  to  dishonesty,  fraud,  and 
300 


EVIDENCE 

crime.  If  it  be  said  that,  owing  to  personal  in- 
terest in  the  matter  in  question,  unsoundness  of 
mind,  deficiency  of  religion,  antecedent  miscon- 
duct, etc.,  their  evidence  is  likely  to  prove  unsafe, 
the  answer  is,  that  any  line  drawn  on  this  subject 
must  necessarily  be  in  the  highest  degree  arbitrary. 
It  is  impossible  to  enumerate,  a  priori,  the  causes 
which  may  distort  or  bias  the  minds  of  men  to 
mis-state  or  pervert  the  truth,  or  to  estimate  the 
weight  of  each  of  these  causes  in  each  individual 
case  or  with  each  particular  person.  But  it  is  very 
different  with  pre-appointed  evidence  where  parties 
have  the  power  to  select  their  own  witnesses."1 
Here  again,  as  in  connection  with  circumstantial 
and  hearsay  evidence,  the  need  for  trained  judges 
is  apparent.  With  such  judges  it  would  be  pos- 
sible to  admit  witnesses  and  testimony  with  much 
greater  freedom,  trusting  to  the  judges  to  separate 
the  true  from  the  false.  The  latter  part  of  the 
above  quotation  suggests  that  there  are  psycholog- 
ical forces  which  must  be  taken  into  consideration 
in  admitting  and  judging  these  forces.  This  ques- 
tion will  be  considered  in  the  latter  part  of  this 
chapter  when  discussing  the  psychology  of  testi- 
mony. 

The  whole  question,  therefore,  as  to  the  compe- 
tency of  witnesses,  the  admissibility  of  evidence, 
and  the  sufficiency  and  weight  of  evidence  depends 
upon  the  standards  to  be  used  in  estimating  the 
value  of  evidence  and  upon  those  who  are  to  judge 
evidence.  We  have  seen  what  effect  the  jury  has 

1W.  M.  Best:    Op.  cit.  pp.  52-53. 
301 


CRIMINAL     PROCEDURE 

had  upon  this  question.  We  shall  see  what  effect 
other  kinds  of  judges  may  have. 

The  presumption  of  innocence  has  considerable 
influence  upon  evidence.  "The  English  law  goes 
farther  in  the  opposite  direction  than  that  of  most 
other  countries,  for  it  lays  down  as  a  maxim,  that 
it  is  better  several  guilty  persons  should  escape 
than  that  one  innocent  person  should  suffer.  The 
salutary  fruit  of  this  is  that  in  no  part  of  the  world 
is  genuine  voluntary  evidence  against  suspected 
criminals  more  easily  procured  than  in  England; 
the  persuasion  being  general  throughout  society, 
that  if  a  suspected  man  be  really  innocent,  the  law 
will  take  care  that  no  harm  shall  happen  to  him."1 
This,  of  course,  constitutes  the  great  utility  of  this 
presumption  of  innocence  for  the  gathering  of  evi- 
dence. "Confidence  in  the  administration  of  justice 
must  necessarily  be  shaken  when  people  reflect,  and 
can  truly  reflect,  that  every  individual  they  see 
condemned  to  punishment  may  be  in  the  highest 
degree  unfortunate,  and  in  no  degree  guilty,  his 
sufferings  being  inflicted  merely  as  a  sacrifice  to 
a  supposed  expediency.  Under  such  a  system,  few 
would  care  to  prosecute  for  offences,  still  fewer  to 
come  forward  with  voluntary  testimony  against 
persons  accused  or  suspected  of  them."2 

But  such  a  presumption  does  not  exist  in  Con- 
tinental procedure  and  the  question  may  be  raised 
whether  there  is  not  danger  of  carrying  it  so  far 
as  to  hamper  the  defense  of  society.  It  may  be 

*W.  M.  Best:    Op.  cit.  pp.  33-34. 
aW.  M.  Best:    Op.  cit.  pp.  34-35. 
302 


EVIDENCE 

«• 

possible  to  increase  the  possibility  of  convicting 
the  guilty  without  at  the  same  time  lessening  the 
protection  against  conviction  for  the  innocent. 
This  might  be  accomplished  by  limiting  the  pre- 
sumption of  innocence  to  the  preliminary  examina- 
tion, after  which  there  should  be  no  presumption 
on  either  side  but  only  the  earnest  endeavor  to 
determine  the  truth  by  every  possible  means.  "The 
presumption  of  innocence,  and  with  it  the  more 
general  rule — in  dubio  pro  reo — certainly  has  a 
foundation  of  truth  and  is  even  obligatory,  when 
the  period  preparatory  to  the  trial  is  concerned, 
that  is  to  say,  the  preliminary  examination,  and 
when  there  are  as  yet  only  suppositions  against  the 
one  who  is  the  object  of  the  examination."1  But 
after  the  preliminary  examination  this  presumption 
should  have  little  or  no  weight,  especially  in  cer- 
tain cases.  "It  must,  therefore,  be  given  weight 
only  with  regard  to  what  concerns  the  material 
proof  of  the  crime,  that  is  to  say,  with  regard  to 
the  physical  responsibility  of  the  accused,  who 
denies  that  he  is  the  author  of  the  incriminating 
act.  But  when  concerned  with  a  flagrant  crime  or 
with  a  confession,  which  has  been  confirmed  in 
other  ways,  of  the  accused,  this  presumption,  which 
is  exclusively  in  his  favor,  does  not  seem  to  me  to 
have  the  same  logical  or  juridical  force.  It  has 
still  less,  for  example,  when  the  accused  is  not  an 
occasional  criminal,  who  succumbs  for  the  first 
time,  or  the  supposed  author  of  an  occasional  mis- 
deed, which,  to  speak  with  more  precision,  belongs 
*E.  Ferri:  Op.  cit.  pp.  493-494. 
303 


CRIMINAL    PROCEDURE 

to  the  cases  of  evolutive  delinquency,  but  that 
he  is  on  the  contrary  a  recidivist,  a  professional 
criminal,  or  that  his  misdeed  in  itself,  in  its  motives 
and  in  its  circumstances,  reveals  a  born  or  insane 
criminal,  and,  to  be  more  precise,  the  author  of  a 
form  of  atavistic  criminality."1  If  more  of  the 
spirit  of  the  procedure  of  investigation  could  be 
infused  into  the  trial,  then  this  presumption,  which 
was  developed  by  the  procedure  of  accusation  and 
was  especially  needed  when  the  state  assumed  the 
function  of  prosecuting,  could  be  dispensed  with 
very  easily. 

Leading  questions  are  forbidden  in  the  first  ex- 
amination by  the  law  of  evidence,  because  they 
tend  to  suggest  to  the  witness  the  answer  desired 
by  the  questioner.  A  psychological  study  of  this 
subject  shows  that  their  utility  depends  upon  the 
character  of  the  witness  and  the  subject  will  be 
more  fully  discussed  when  dealing  with  the  psy- 
chology of  testimony. 

A  plea  of  guilty  is  in  English  law  equivalent  to 
a  conviction.  "If  the  accused  confesses  himself 
guilty,  the  confession  is  recorded  and  the  court  in 
its  discretion  proceeds  to  judgment.  Such  a  con- 
fession of  guilt  is  in  law  a  conviction."2  Such  is 
not  the  case,  however,  in  Continental  procedure 
where  further  evidence  is  needed  to  corroborate  a 
confession  of  guilt  before  the  accused  is  convicted. 
In  other  words,  the  confession  is  a  part  of  the 

1 E.  Ferri :  Op.  cit.  p.  494. 

2  E.  B.  Bowen-Rowlands :   Criminal  Proceedings  on  Indict- 
ment and  Information  in  England  and  Wales,  London,   1904. 
304 


/ 


EVIDENCE 

evidence  and  is  not  equivalent  to  a  conviction.  It 
goes  without  saying  that  such  a  confession  is  very 
powerful  evidence  and  as  it  results  in  a  cessation 
on  the  part  of  the  defense  of  any  attempt  to  prove 
the  innocence  of  the  accused  the  trial  is  greatly 
shortened.  But  as  insanity,  the  desire  to  protect 
the  guilty  person,  or  some  such  reason  may  some-  i 
times  lead  to  the  confession  of  guilt  by  an  innocent 
person,  it  is  scarcely  safe  to  consider  such  a  con- 
fession as  equivalent  to  a  conviction. 

No  burden  of  proof  exists  in  Continental  pro- 
cedure and  it  is  not  needed  if  there  is  every  legiti- 
mate guarantee  of  a  protection  to  the  innocent. 
As  in  every  argument  and  debate  it  is  of  course 
necessary  for  the  affirmative  to  take  the  initiative, 
but  to  make  of  this  formality  a  rule  of  evidence  is 
to  impose  an  unnecessary  restriction  upon  the  free- 
dom of  the  debate. 

This  study  of  these  rules  of  evidence  has  re- 
vealed a  certain  amount  of  arbitrariness  and  rigid- 
ity which  is  to  a  certain  extent  inevitable  in  any 
law  of  evidence.  As  we  have  seen,  the  presence  of 
the  jury  has  emphasized  these  characteristics  in 
the  English  law  of  evidence.  But  it  is  true  in  re-  J 
ceiving  and  weighing  evidence  as  in  the  treatment 
of  criminals,  that  individualization  is  necessary, 
since  each  individual  case  and  witness  is  more  or 
less  peculiar.  Therefore,  a  law  of  evidence  should 
be  very  flexible.  To  have  this  flexibility  it  must 
be  based  on  scientific  principles.  But  before  tak- 
ing up  the  study  of  these  scientific  principles  it  will 
20  305 


CRIMINAL     PROCEDURE 

be  necessary  to  consider  the  ways  in  which  evidence 
is  now  gathered  and  presented. 

As  most  criminal  cases  are  commenced  by  an 
arrest,  the  first  evidence  is  gathered  by  the  police, 
in  ways  which  have  already  been  discussed  in  our 
chapter  on  the  police  agency.  This  evidence  is 
presented  at  the  preliminary  examination,  which  is 
held  in  England  and  America  before  a  police  mag- 
istrate, in  France  before  a  juge  de  la  paix  or  before 
a  juge  d'instruction  and  in  other  Continental  coun- 
tries before  similar  officials.  In  the  case  of  certain 
minor  offenses  these  judges  have  the  power  to  try 
and  decide  a  case  except  the  juge  d'instruction  who 
has  not  this  power  though  he  has  a  great  deal  of 
power  in  examining  and  determining  whether  or  not 
a  case  shall  be  dismissed  and  to  what  tribunal  it  is 
to  be  sent.  Outside  of  these  cases  where  the  ex- 
amining magistrate  has  the  power  of  summary 
jurisdiction,  the  object  of  the  preliminary  exam- 
ination is  to  determine  whether  there  is  sufficient 
reason  for  detaining  the  accused  and  to  what  tri- 
bunal his  case  should  be  sent.  The  evidence  pre- 
sented in  the  preliminary  examination  is  repeated 
in  the  final  trial,  for  which  reason  in  English  and 
crican  police-courts  there  is  not  much  care 

ken  to  keep  a  record  of  the  evidence  and  the 
vidence  is  not  as  full  and  explicit  as  it  might  be. 

his  is,  however,  a  mistake  since  the  preliminary 
mination  ought  to  be  very  complete  in  order 
to  lose  no  evidence.  There  is  considerable  dif- 
ference between  the  preliminary  examination  of 
Anglo-American  procedure  and  that  of  Continental 
306 


EVIDENCE 

procedure  in  this  and  other  respects  and  we  will 
make  a  comparison  of  the  two,  taking  the  French 
as  an  example  of  Continental  procedure. 

The  Anglo-American  preliminary  examination 
is  held  in  public.  It  is  to  a  certain  extent  contra- 
dictory, since  counsel  for  the  prosecution  and  for 
the  defense  can  take  part  and  frequently  do  so. 
When  such  is  the  case  a  good  deal  of  time  may  be 
spent  on  one  case,  because  of  the  argument  between 
counsel.  Otherwise  very  little  time  is  given  to  each 
case,  since  no  attempt  is  made  to  gather  and  record 
all  the  testimony.  The  only  object  is  for  the  judge 
to  determine  whether  there  is  sufficient  reason  to 
hold  the  accused  for  trial.  The  publicity  of  this 
preliminary  examination  and  the  possibility  of 
making  it  contradictory  reveal  its  origin  in  the 
procedure  of  accusation. 

The  examination  before  the  juge  d' instruction  or 
French  examining  magistrate  is  secret.  No  pub- 
lic prosecutor  is  present.  Counsel  for  the  defense 
is  admitted.  He  has  no  right  to  take  part  formally 
in  the  examination,  but  protects  his  client  against 
any  abusive  use  of  his  power  by  the  juge  d'instruc- 
tion.  The  counsel  can,  however,  usually  influence 
the  examination  a  little  by  informal  conversation 
with  the  judge.  The  judge  carefully  examines  the 
plaintiff,  the  defendant  and  the  witnesses,  writing 
a  concise  statement  of  the  testimony  in  the  case 
of  each  person  examined.  He  then  decides  to 
what  court  the  case  should  be  sent  for  trial  or  dis- 
misses it  if  there  is  not  sufficient  evidence  against 
307 


CRIMINAL     PROCEDURE 

the  accused  to  justify  detaining  him  by  means  of 
an  "ordonnance  de  non  lieu." 

It  is  evident  that  the  French  preliminary  exam- 
ination originated  from  and  is  in  the  spirit  of  the 
procedure  of  investigation.  When  we  compare 
with  it  the  Anglo-American  preliminary  examina- 
tion we  can  see  its  superiority.  It  must  be  re- 
membered that  this  examination  is  not  final.  It  is 
only  for  the  purpose  of  determining  if  there  is  suf- 
ficient reason  for  detaining  the  accused  for  trial 
and  also  should  be  for  the  purpose  of  gathering  all 
the  available  evidence.  There  is,  therefore,  no  oc- 
casion for  making  it  contradictory  as  it  frequently 
is  in  the  Anglo-American  procedure.  It  is  well  to 
admit  the  counsel  for  the  defense  in  order  to  guard 
carefully  the  rights  and  interests  of  the  accused, 
but  the  public  prosecutor  should  be  excluded  since 
there  is  no  reason  for  introducing  the  contradictory 
element  at  this  stage  in  the  procedure.  Publicity 
is,  therefore,  not  absolutely  necessary.  Secrecy 
is  probably  more  advisable  since  more  spontaneous 
testimony  can  be  obtained  under  these  conditions 
from  witnesses  who  have  heard  no  contradictory 
testimony.  The  same  reasons  for  publicity  do  not 
exist  which  will  be  discussed  further  on  in  con- 
nection with  the  examination  in  the  trial.  If,  how- 
ever, there  is  any  reason  to  believe  that  publicity 
will  make  the  evidence  more  reliable,  the  examina- 
tion can  be  made  public.  Garofalo  has  formulated 
this  principle  as  follows:  "It  (the  preliminary  ex- 
amination) will  be  secret,  at  least  when  the  juge 
d'instruction  thinks  that  publicity  will  not  help  the 
308 


EVIDENCE 

search  for  truth.  In  that  case  he  will  be  able  to 
admit  the  contradiction  of  the  parties  and  of  the 
witnesses,  but  without  the  presence  of  lawyers."1 
It  is  well,  as  we  have  already  noted,  to  admit  the 
counsel  for  the  defense,  but  the  absence  of  the  public 
prosecutor  will  exclude  any  contradictory  element 
from  the  procedure.  The  presence  of  opposing 
parties  and  witnesses  frequently  acts  as  a  check  on 
each  other's  testimony  and  a  juge  d' instruction,  hav- 
ing the  power  to  do  so,  will  sometimes  examine  one 
of  the  parties  or  a  witness  in  the  presence  of  the  op- 
posing party  or  another  witness. 

The  success  of  the  preliminary  examination  must 
depend  largely  upon  the  character  of  the  examin- 
ing magistrate  and  the  powers  given  to  him.  The 
juge  d 'instruction  is  a  descendant  of  the  Grand 
Inquisitor  and  his  functions  are  a  survival  of  the 
Inquisition.2  His  powers  have  been  too  great  and 
may  be  so  still,  as,  for  example,  his  power  to  detain 
an  accused  for  six  months.  His  powers  were, 
however,  restricted  by  the  law  of  1897  and  the 
presence  of  the  counsel  for  the  defense  is  an  effec- 
tive check  upon  him  It  must  furthermore  be  re- 
membered that  the  juge  d' instruction  performs  the 
functions  of  the  grand  jury  as  well  as  those  of  the 
English  or  American  examining  magistrate,  for 
which  reason  his  powers  are  somewhat  enlarged. 
The  chambre  des  mises  en  accusation  is  sometimes 
spoken  of  as  corresponding  to  the  grand  jury  but 

1  La  criminologie,  sth  edition,  Paris,   1905,  p.  468. 
*Cf.  Oliver  E.  Bodington :  An  Outline  of  the  French  Law 
of  Evidence,  London,  1904. 

309 


CRIMINAL    PROCEDURE 

this  is  not  accurate  since  the  chambre  is  a  profes- 
sional body  made  up  of  magistrates  and  hears  no 
testimony.  It  decides  only  upon  points  of  law  in- 
volved in  the  record  of  the  examination  made  by 
the  juge  d' instruction.  It  is  not  necessary  to  dis- 
cuss the  examination  made  by  the  grand  jury  in 
this  chapter,  since  no  record  is  kept  of  it. 

But  it  is  not  sufficient  that  the  powers  of  the 
examining  magistrate  should  be  properly  limited 
and  that  he  should  be  entirely  unbiased  in  conduct- 
ing the  examination.  He  should  also  be  competent 
to  gather  all  the  available  evidence.  He  should 
understand  the  psychology  of  witnesses  so  as  to 
obtain  the  largest  possible  amount  of  testimony 
from  them.  He  should  be  able  to  go  to  the  scene 
of  the  crime,  as  is  now  done  by  the  juge  d' instruc- 
tion, and,  with  or  without  the  aid  of  experts,  to 
gather  the  physical,  chemical,  toxicological,  etc., 
evidences  of  crime.  As  a  preparation  for  this  work, 
he  should  be  trained  in  criminal  anthropology  and 
sociology.  It  is  evident  that  the  examining  magis- 
trate must  be  a  man  of  special  training.  The 
method  of  preparing  him  for  his  work  will  be  dis- 
cussed in  a  later  chapter  on  the  judiciary.  A  care- 
ful record  of  this  examination  should  be  kept,  as 
is  now  done  by  the  juge  d' instruction,  though  a 
mistaken  use  is  made  of  this  record,  as  will  be  seen 

Oirther  on.     Such  a  record  would  preserve  evidence 
hich  may  disappear  or  become  less  reliable  before 
ie  time  for  the  trial  arrives. 
This,  then,  is  the  kind  of  an  examination  neces- 
sary, in  the  first  place,  to  arrive  at  a  wise  decision 
310 


EVIDENCE 

*"••« 

as  to  whether  or  not  the  accused  should  be  held  for 
trial,  and,  in  the  second  place,  for  securing  a  record 
of  all  the  available  evidence.  An  English  or  Amer- 
ican police  court  is,  however,  quite  unfitted  for 
conducting  such  an  examination.  The  magistrate 
has  no  special  training  for  his  task.  The  time 
given  to  each  case  is  usually  too  short  to  permit  of 
a  thorough  investigation  and  the  publicity  is  exces- 
sive. The  Anglo-American  preliminary  examina- 
tion is,  therefore,  very  inefficient  and  is  indeed  a 
disgrace  to  English  and  American  systems  of  pro- 
cedure,  for  it  very  greatly  lessens  their  effectiveness 
for  administering  justice.  The  French  preliminary 
examination,  on  the  contrary,  notwithstanding  its 
faults,  furnishes  a  basis  for  reconstruction. 

After  the  preliminary  examination,  the  gathering 
of  evidence  is  left  to  the  prosecution  and  defense, 
each  party  gathering  the  evidence  for  its  own  side. 
This  is  an  effective  way  of  having  the  evidence 
gathered,  since  it  is  to  the  interest  of  each  side  to 
produce  the  largest  possible  amount  of  evidence  in 
its  own  behalf.  It  is,  however,  essential  that  the 
advocates  should  have  the  special  training  which 
will  enable  them  to  know  what  is  evidence  and  to 
estimate  its  value.  The  question  of  the  training 
of  advocates  will  be  taken  up  in  the  chapter  on  the 
judiciary. 

We  now   come  to  the   examination  in  the  trial 

which  must  be  essentiallv  different  from  the  pre- 

.  .  . 

limmary  examination,  since  the  object  now  is  to  j 

reach  a  final  decision.     We  will  again  compare  the  ! 
Continental  procedure  as  exemplified  in  the  French,  j 

311 


CRIMINAL     PROCEDURE 

with  the  English  and  American  procedure,  with 
respect  to  this  examination.  As  indicated  above, 
the  evidence  is  gathered  and  the  witnesses  sum- 
moned by  the  prosecution  and  the  defense.  But 
the  method  in  which  the  evidence  is  presented 
varies  greatly.  In  Continental  procedure  the 
judges  assist  greatly  in  presenting  the  evidence  by 
conducting  the  examination  of  witnesses  as  in  the 
preliminary  examination.  The  witness  is  sup- 
posed to  give  his  testimony  spontaneously  but  most 
of  it  is  drawn  out  by  questions  from  the  judge. 
This  characteristic  of  Continental  procedure  is  de- 
rived from  the  old  inquisitorial  procedure.  Further- 
more, in  most  Continental  countries,  as,  for  example, 
in  France  and  in  Germany,  the  judge  has  already 
studied  the  record  of  the  preliminary  examination 
which  has  tended  to  give  him  an  opinion  favorable 
to  one  side  or  the  other,  more  frequently  against  the 
defendant  since  the  weight  of  the  evidence  in  the 
preliminary  examination  is  usually  against  the  de- 
fendant. Since  it  is  very  difficult  for  any  one  to  re- 
main absolutely  impartial  while  presenting  evidence 
on  two  sides,  this  prejudice  tends  to  increase  and 
leads  the  judge  to  bring  out  more  emphatically  the 
evidence  on  one  side,  usually  against  the  defendant. 
The  examination  in  an  English  or  American  trial 
is  quite  different  and  reveals  its  origin  in  the  pro- 
cedure of  accusation.  The  examination  is  con- 
ducted by  the  counsel  for  the  two  sides.  The  judge 
knows  nothing  of  the  evidence  previous  to  the  trial 
and  has  little  to  do  with  the  examination,  except  to 
decide  questions  as  to  the  law  of  evidence  and  on 
312 


EVIDENCE 

rare  occasions  to  ask  a  question  of  a  witness.  First 
comes  the  examination-in-chief  or  direct  examina- 
tion in  which  the  object  of  the  counsel  for  the  side 
which  has  called  the  witness  is  to  make  the  witness 
tell  what  he  knows  consecutively  and  without 
wandering  from  the  point.  Skill  is  required  to  ask 
questions  so  as  to  accomplish  this  without  suggest- 
ing answers  since  leading  questions  are  not  per- 
mitted. Then  comes  the  cross-examination  in 
which  the  counsel  for  the  opposite  side  tries  to 
shake  the  evidence  given  and  to  bring  out  any  facts 
favorable  for  his  side.  Leading  questions  may  be 
asked  in  the  cross-examination.  In  the  re-direct 
examination  the  counsel  for  the  side  which  has 
called  the  witness  tries  to  clear  up  any  point 
brought  out  in  the  cross-examination  which  needs 
explanation. 

When  we  compare  this  method  of  examination 
with  the  French  method  there  can  be  no  question 
that  the  Anglo-American  method  is  superior.  The 
tendency  of  a  French  judge  is  to  become  preju- 
diced against  the  defendant  and  to  throw  the  weight 
of  the  evidence  against  him.  This  is  indicated  by 
the  aggressive  manner  in  which  the  "president"  or 
presiding  judge  in  a  French  court  will  usually  put 
the  questions  to  a  witness  and  especially  to  a  wit- 
ness in  favor  of  the  defendant.  He  interferes  con- 
tinually in  the  debate  and  has  frequent  conflicts 
with  the  accused  and  the  witnesses,  after  which  he 
cannot  judge  impartially.1  It  is  probably  this 
characteristic  of  a  French  trial  which  has  given 

1  Jean  Cruppi :  La  cour  d'assises,  Paris,  1898. 
313 


CRIMINAL     PROCEDURE 

rise  to  the  popular  impression  that  in  French  pro- 
cedure a  defendant  is  presumed  to  be  guilty  until 
he  has  proved  himself  innocent.  This  is,  of  course, 
not  true  in  theory  though  it  tends  to  become  true 
in  practise.  This  fact  has  been  expressed  as  fol- 
lows by  a  writer  on  i.ie  French  law  of  evidence: 
"It  is  unfair  to  say  that  in  France  a  prisoner  is 
guilty  until  he  has  been  proved  to  be  innocent; 
but  it  is  true  to  say  that  the  French  system  fosters 
prejudice  against  the  prisoner."1 

The  English  or  American  judge,  on  the  con- 
trary, is  able  to  maintain  an  unbiased  attitude 
throughout  the  trial.  He  comes  to  the  examination 
with  a  fresh  and  open  mind  and  remains  passive 
while  the  evidence  and  arguments  of  both  sides  are 
being  presented  before  him.  He  is  then  able  to 
weigh  these  impartially  and  to  come  to  the  wisest 
decision  possible  under  the  circumstances. 
"The  Anglo-American  examination  is  preferable 
also  because  it  exposes  a  larger  amount  of  evidence. 
It  is  a  psychological  impossibility  for  one  man  to 
keep  in  mind  all  the  points  on  both  sides  of  a  more 
or  less  complicated  controversy.  In  the  English 
or  American  examination,  on  the  contrary,  there 
are  two  minds  each  interested  in  bringing  out 
every  possible  point  on  its  own  side  and,  further- 
more, interested  in  bringing  out  by  means  of  the 
cross-examination  every  inconsistency  and  fallacy 
in  the  evidence  or  arguments  of  the  other  side. 
The  anticipation  of  the  cross-examination  fre- 
quently influences  the  direct  examination  by  the 

1O.  E.  Bodington:    Op.  cit.  p.  105. 
3H 


EVIDENCE 

fear  it  excites  which  prevents  many  attempts  to 
impose  upon  the  court.  An  English  writer  has 
well  stated  the  advantages  of  this  form  of  exam- 
ination in  the  following  words:  "But  of  all  checks 
on  the  mendacity  and  misrepresentations  of  witness- 
es, the  most  effective  is  the  requiring  their  evidence 
to  be  given  viva  voce,  in  presence  of  the  party 
against  whom  they  are  produced,  who  is  allowed  to 
cross-examine  them;  i.  e.,  to  ask  them  such  ques- 
tions as  he  thinks  may  serve  his  cause.  The  great 
tests  of  the  truth  of  any  narrative  are  the  consist- 
ency of  its  several  parts,  and  the  possibility  and 
probability  of  the  matters  narrated.  Stories  false 
in  toto  are  comparatively  rare;  it  is  by  misrepre- 
sentation, suppression  of  some  matters  and  addi« 
tion  of  others,  that  a  false  coloring  is  given  to 
things;  and  it  is  only  by  a  searching  inquiry  into 
the  surrounding  circumstances  that  the  whole 
truth  can  be  brought  to  light.  Now,  although 
much  valuable  evidence  is  often  elicited  by  ques- 
tions put  from  the  tribunal,  and  although  the  story 
told  by  a  witness  frequently  discloses,  of  itself, 
some  inconsistency  or  improbability  fatal  to  the 
whole,  it  is  chiefly  from  the  party  against  whom 
false  testimony  is  directed,  that  we  can  expect  to 
obtain  the  most  efficient  materials  for  its  detection. 
He,  above  all  others,  is  interested  in  exposing  it, 
and  is  the  person  best  acquainted,  often  the  only 
person  acquainted  with  the  facts  as  they  have  really 
occurred.  Besides,  as  the  answer  to  one  question 
frequently  suggests  another,  it  is  extremely  diffi- 
cult for  a  mendacious  witness  to  come  prepared 


CRIMINAL     PROCEDURE 

with  his  story,  ready  fitted  to  meet  any  question 
which  may  be  thus  put  to  him  on  a  sudden."1 

We  see  from  the  above  quotation  the  utility  of 
publicity  as  a  check  to  mendacity  on  the  part  of 
witnesses.  It  serves  also  as  a  check  to  corruption 
and  as  a  stimulus  to  the  attention  of  judges  who 
know  that  the  public  is  watching  them  in  the  per- 
formance of  their  duties. 

\       From  their  training  in  cross-examination   Eng- 
\  lish  and  American   lawyers  have   acquired  an  in- 
j  quisitorial   ability   as  great  as   that  of  the  judge 
\  inquisitors   of  the   old    French   procedure.2     This 
ability    is    very    effective    frequently    in    exposing 
errors  in  testimony.     But  it  is  also  used  to  con- 
fuse witnesses  in  order  to  bring  discredit  upon  their 
testimony.     And    lawyers    frequently    succeed    in 
doing  so  on  account  of  the  presence  of  the  jury 
whereas  they  rarely  succeed  in  deceiving  judges. 

By  comparing  the  examination  in  the  two  pro- 
cedures the  differences  between  the  English  and 

the  French  law  of  evidence  are  made  very  evident. 

* 

In  a  French  trial  the  question  of  relevancy  is  rarely 
ever  raised,  because  "hearsay  evidence,"  opinion,  or 
evidence  as  to  character  are  not  excluded.  Counsel 
introduces  all  oral  or  documentary  evidence  which 
he  believes  will  throw  light  on  the  case.  Witnesses 
narrate  uninterruptedly,  with  only  occasional  ques- 
\  dons  from  judge  or  counsel  to  elucidate  particular 
points.  The  judges  are  expected  to  separate  the 

1 W.  M.  Best :   Op.  cit.  pp.  84-85. 

2  Cf.  A.  Esmein :  Le  "Criminal  Evidence  Act"  de  1898  et 
le  serment  des  accuses  en  Angleterre,  Paris,  1808. 


EVIDENCE 

wheat  from  the  chaff  in  the  evidence.  There  is  an 
economy  of  time  in  this  system,  since  there  is  no 
lengthy  direct  and  cross-examination.  This  sys- 
tem is  not  bad  where  the  decision  is  made  by  a 
judge  for  a  trained  judge  is  capable  of  distinguish- 
ing the  relevant  and  significant  facts  in  the  evidence. 
But  it  is  very  bad  for  a  jury  which  is  likely  to  be 
influenced  by  unimportant  testimony.  This,  as  we 
have  seen,  has  been  the  principal  cause  for  the  de- 
velopment of  the  English  law  of  evidence. 

After  the  examination  and  contradictory  debate 
comes  the  charge  to  the  jury  by  the  judge.  "The 
charge  of  the  court  to  the  jury  consists  of  an  ex- 
planation of  the  law  governing  the  case,  and  of 
such  a  review  of  the  evidence  as  may  be  necessary 
in  connection  therewith."1  This  charge  to  the  jury 
was  carried  to  the  Continent  with  the  jury  after 
the  French  Revolution.  But  it  was  found  that  it 
was  the  tendency  of  the  judge  to  influence  the  jury 
usually  against  the  accused,  though  sometimes  this 
effort  on  the  part  of  the  judge  resulted  in  antag- 
onizing the  jury  and  sending  it  too  far  in  the  other 
direction.  This  tendency  of  the  judge  was  the 
result  of  the  prejudice  against  the  accused  which 
we  have  already  discussed.  As  a  consequence  the 
charge  to  the  jury  has  been  abolished  in  France 
and  in  other  Continental  countries.  The  under- 
lying principle  of  this  charge  is  that  the  judge  is 
not  to  influence  the  jury.  And  yet  if  the  judge  re- 
views the  evidence  carefully,  he  can  scarcely  avoid 

1  Wm.  C.  Robinson:  Elementary  Law,  Boston,  1882,  pp. 
330-331 

317 


CRIMINAL     PROCEDURE 

showing  his  opinion.  So  that  the  English  or  Amer- 
ican judge  is  as  likely  to  influence  the  jury  as  the 
Continental  judge.  But  though  this  is  as  great  a 
violation  of  the  principle  stated  above  it  is  not  so 
objectionable  as  in  the  case  of  the  Continental  judge 
because,  as  we  have  seen,  the  opinion  of  the  Eng- 
lish or  American  judge  is  likely  to  be  more  impar- 
tial. In  fact  it  is  probably  better  on  the  whole 
that  this  principle  should  be  violated  since  the 
jury  is  usually  in  need  of  just  such  guidance  as 
the  judge  can  give  to  it. 

After  the  charge  to  the  jury  comes  the  decision. 
Since  this  is  the  function  of  the  judge  or  of  the 
jury  it  will  be  discussed  in  the  following  chapters 
on  the  jury  and  the  judiciary. 

We  have  now  reviewed  the  law  of  evidence  and 
the  methods  used  to  gather  and  present  evidence 
in  existing  systems  of  procedure.  With  this  as  a 
starting  point  let  us  consider  the  scientific  prin- 
ciples which  underlie  evidence  and  outline  a  sys- 
tem of  evidence  based  on  these  principles. 

In  the  past,  belief  has  existed  in  the  possibility 
and  also  in  the  necessity  of  having  absolute  legal 
proof  of  guilt.1  This  was  perhaps  the  principal 
cause  for  the  use  of  torture  in  the  past  to  extort  a 
confession  of  guilt  from  the  accused.  There  was 
also  a  moral  and  religious  element  involved  in  this 
belief,  for  it  was  considered  necessary  to  have  abso- 
lute proof  not  only  of  the  commission  of  the  crime 
but  also  of  the  moral  guilt  of  the  criminal.  "It  has 
been  thought,  and  it  seems  quite  probable,  that  this 
1G.  Tarde:  Op.  cit. 


EVIDENCE 

idea  of  responsibility  was  one  of  the  pretexts,  not 
the  only  one  certainly,  for  that  whole  question  is 
very  complex,  and  there  were  others,  well  known, 
and  absolutely  predominant,  which  excused  the 
introduction  of  torture.  In  order  to  punish,  it 
was  necessary  to  have  proof,  not  only  of  the  deed, 
but  of  guilt.  It  was,  therefore,  necessary  to  provoke 
a  confession;  and  as  in  general  guilty  persons 
do  not  confess  freely  or  at  least  they  exonerate 
themselves,  it  was  by  torture  that  it  was  sought 
to  establish  their  guilt,  as  much  moral  as  material."1 
A  reminiscence  of  this  belief  in  the  possibility  of 
absolute  legal  proof  still  lingers  in  the  idea  that 
confession  is  the  "queen  of  proofs"  and  that  a  plea 
of  guilty  is  conclusive  evidence  of  guilt. 

But  it  is  now  pretty  generally  recognized  that 
legal  proof  is  relative  like  all  other  forms  of  proof, 
and  that  legal  evidence  is  the  same  as  the  evidence 
of  science  and  of  common  sense.  We  find  recog- 
nition of  this  truth  in  the  eighteenth  century  in 
the  writings  of  Beccaria:  "The  word  probability, 
in  connection  with  crimes,  which,  to  merit  punish- 
ment, must  be  certain,  will  perhaps  appear  mis- 
placed, but  this  will  cease  to  be  a  sort  of  a  paradox 
for  whoever  will  consider  that,  strictly  speaking, 
moral  certitude  is  only  a  probability,  of  such  a  kind, 
however  that  it  merits  the  name  of  certitude,  be- 
cause every  man  of  good  sense  sees  himself  forced 
to  give  to  it  his  assent  by  a  sort  of  habit  born 
of  the  very  necessity  to  act,  and  anterior  to  all 

1  R.  Saleilles :  L'individualisation  de  la  peine,  Paris,  1898. 
P-  39- 

319 


CRIMINAL     PROCEDURE 

speculation.  But  the  certitude  requisite  to  convict 
a  guilty  person  is  the  same  which  determines  men 
in  the  most  important  operations  of  life."1  This 
truth  is  stated  also  in  the  following  quotations 
from  two  well-known  English  legal  writers  of  the 
nineteenth  century: 

"Facts  which  come  in  question  in  courts  of  jus- 
tice are  inquired  into  and  determined  in  precisely 
the  same  way,  as  doubtful  or  disputed  facts  are 
inquired  into  and  determined  by  mankind  in  gen- 
eral, except  so  far  as  positive  law  has  interposed 
with  artificial  rules,  to  secure  impartiality  and  ac- 
curacy of  decision,  or  exclude  collateral  mischiefs 
likely  to  result  from  the  investigation."2 

"All  inquiries  into  assertions  as  to  matters  of 
fact  rest  upon  the  same  foundations  as  assertions 
about  physical  science.  At  bottom  they  rest  upon 
the  same  great  assumptions — the  general  uniform- 
ity of  Nature,  and  the  general  trustworthiness  of 
the  senses.  The  logic  on  which  each  proceeds  is  the 
same.  In  each  case  certain  conclusions  are  drawn 
from  certain  facts,  and  in  each  case  it  is  easy  to  err, 
either  because  any  given  premiss  is  false,  or  any 
given  conclusion  is  incorrect.  The  certainty  of  the 
conclusions  reached  in  each  is  proportional  to  the 
strength  of  the  evidence."3 

Thus  a  high  degree  of  probability  is  the  best  pos- 
sible result  of  judicial  evidence  as  it  is  of  scientific 
evidence.  But  the  degree  of  probability  is  usually 

1 C.  Beccaria :  Crimes  and  Punishments,  Chap.  XIV. 
*  W.  M.  Best :  Op.  cit.  p.  2. 
3J.  F.  Stephen:  Op.  cit.  p.  189. 
320 


EVIDENCE 

lower  in  law  than  in  science  on  account  of  certain 
differences  in  the  practical  conditions  under  which 
the  search  for  proof  is  made.  Stephen  has  given 
five  such  differences :  ( i )  In  science,  the  number 
of  relevant  facts  is  unlimited;  in  law,  it  is  limited. 
(2)  In  science,  inquiries  can  be  prolonged  and 
conclusions  can  be  revised  indefinitely;  in  judicial 
investigations,  the  time  is  limited  and  conclusions 
cannot  usually  be  revised.  (3)  In  science,  facts 
are  usually  open  to  no  doubt,  because  they  do  not 
concern  the  passions  and  because  they  are  observed 
by  trained  observers  who  are  exposed  to  criticism 
and  correction  if  they  make  mistakes  and  who  are 
not  tempted  to  commit  fraud.  In  judicial  inquir- 
ies, facts  affect  the  passions  and  are  testified  to  by  / 
untrained  observers  who  usually  cannot  be  contra- 
dicted and  are  strongly  tempted  to  misrepresent. ! 
(4)  Approximate  generalizations  are  more  useful  • 
in  law  than  in  science  because  individual  experience 
supplies  qualifications  and  exceptions  to  adjust 
general  rules  to  particular  facts;  but  this  is  not  the 
case  in  scientific  inquiries.  (5)  In  judicial  in- 
quiries, the  best  possible  conclusion  is  reached  more 
easily  than  in  science  but  without  as  much  cer- 
tainty.1 

On  account  of  the  above  differences  and  because 
in  law  it  is  necessary  to  reach  a  practical  conclu- 
sion in  a  limited  period  of  time  the  same  precision 
cannot  be  attained  in  law  in  the  methods  used  and 
in  the  results  obtained  as  in  science.  But  the  ob- 
ject should  be  to  make  these  methods  as  scientific 

1J.  F.  Stephen:    Op.  cit. 
21  321 


CRIMINAL     PROCEDURE 

as  possible  in  order  that  the  results  shall  approxi- 
mate as  closely  as  possible  those  of  science.  We 
shall,  therefore,  now  discuss  the  different  kinds  of 
evidence  and  the  methods  of  weighing  the  value  of 
evidence  in  order  to  determine  how  far  the  classi- 
fication of  evidence  and  the  weighing  of  its  value 
can  be  made  scientific.  Scientific  methods  have  al- 
ready been  applied  to  a  certain  extent  in  medical 
jurisprudence  and  in  the  use  of  expert  testimony 
and  we  will  commence  with  a  review  of  the  present 
status  of  medical  jurisprudence  and  of  the  ways  in 
which  expert  testimony  is  used. 

The  Romans  exonerated  certain  of  the  sick  from 
punishment  as  being  morally  irresponsible  and  this 
immunity  lasted  through  the  Middle  Ages  though 
the  insane  were  frequently  punished  as  being  pos- 
sessed by  the  devil.1     This  fact  shows  that  it  has 
been  recognized  for  a  long  time  that  the  physical 
condition  of  a  criminal  had  some  effect  upon  his 
responsibility.     Tarde  says  that  legal  medicine  or 
\  medical  jurisprudence  began  in  the  thirteenth  cen- 
\  tury.2     But  we  cannot  stop  to  trace  its  historical 
« development  in  this  book. 

Medical  jurisprudence  requires  testimony  of  va- 
rious kinds  from  medico-legal  experts.  General 
information  about  the  human  body  is  frequently 
needed.  It  is  frequently  necessary  to  examine  ca- 
davers and  victims  of  attacks  against  the  person  such 
as  wounds  by  firearms  or  other  weapons,  strangula- 
tion, precipitation  from  an  elevation,  asphyxiation, 

1Cf.  Ch.  Fere:  Degenerescence  et  crimlnalite,  Paris,  1888. 
"Op.  cit. 

2,22 


EVIDENCE 

poisoning,  etc.  The  sexual  instinct  and  func- 
tion of  reproduction  call  for  medico-legal  experts 
for  the  examination  of  victims  of  rape,  pederasty, 
sodomy,  etc.,  of  women  who  are  pregnant  or  have 
given  birth  to  children  and  in  cases  of  criminal 
abortion.  Infanticide  necessitates  the  autopsy  of 
newborn  infants.  Closely  connected  with  this 
sort  of  testimony  is  that  of  observers  with  the 
microscope  who  examine  traces  of  blood  or  of 
sperm,  excrements,  hairs,  imprints  of  hands  or  of 
feet,  etc. 

Another  important  function  of  medico-legal  ex- 
perts is  to  examine  accused  persons  and  to  give  tes- 
timony with  regard  to  certain  diseases  such  as 
epilepsy,  insanity,  etc.,  which  may  cause  irresponsi- 
bility. The  most  frequent  cause  of  irresponsibility 
is  insanity.  The  procedure  in  such  cases  varies 
greatly  under  different  jurisdictions  as  indicated  in 
the  following  quotation  about  the  States  of  the 
Union :  "Whenever  a  plea  of  insanity  is  made  at  the 
beginning  of  a  trial,  the  obligation  to  take  account  of 
this  plea  is  everywhere  recognized,  but  the  methods 
of  respecting  the  plea  and  determining  the  question 
of  insanity  are  different.  In  some  States  the  trial 
is  suspended  until  the  question  of  insanity  is  deter- 
mined. In  others  the  trial  is  proceeded  with  in  reg- 
ular course  but  the  jury  take  account  of  the  plea  of 
insanity  in  rendering  their  verdict.  Thus  in  some 
States  the  matter  of  insanity  is  decided  before  the 
question  whether  or  not  the  person  committed  the 
crime  for  which  he  is  charged.  In  some  States  a 
special  jury  is  impaneled  to  decide  the  question  of 
323 


CRIMIN\L     PROCEDURE 

insanity.  In  other  States  it  is  determined  by  a 
special  commission  of  experts  appointed  by  the 
judge."1  The  importance  of  having  medical  tes- 
timony in  such  cases  can  hardly  be  questioned  since 
no  judge  or  jury  can  be  expected  to  have  any  spe- 
cial knowledge  of  this  disease:  "Though  no  method 
can  insure  infallibility  of  judgment  in  regard  to 
the  insanity  of  a  person,  the  importance  of  compe- 
tent medical  testimony  does  not  need  to  be  argued. 
From  Indiana  we  learn  that  cases  have  been  known 
in  which  persons  charged  with  crime  have  been 
acquitted  by  a  jury  on  the  ground  of  insanity  and 
have  subsequently  been  held  sane  by  a  commission 
of  lunacy.  In  Florida  the  question  of  insanity  is 
not  committed  to  a  jury,  but  decided  by  experts."2 
The  practical  questions  to-day  are  how  a  medico- 
legal  expert  is  to  testify  and  what  influence  his  tes- 
timony is  to  have  upon  the  decision.  As  a  rule  a 
medico-legal  expert  is  required  to  answer  yes  or  no 
to  the  question  whether  or  not  the  accused  is  insane. 
"The  law  and  the  judge  demand  of  the  medico- 
legal  expert  a  description  of  the  defendant  by 
means  of  a  monosyllabic  response,  in  declaring  by 
a  yes  or  by  a  no  whether  he  is  insane  or  healthy  of 
mind,  because  they  believe  that  living  nature  can 
be  imprisoned  in  their  dilemmas  or  their  juridical 
syllogisms.  Very  often,  on  the  contrary,  all  that 
the  expert  can  reply  is  that  the  defendant  is  be- 
tween insanity  and  health  of  mind,  or  insanity  and 

1  S.  J.  Barrows :  The  Criminal  Insane  in  the  United  States 
and  in  Foreign  Countries,  Washington,   1898,  pp.  8-9. 
*  S.  J.  Barrows :  Op.  cit.  p.  9. 
324 


EVIDENCE 

congenital  criminality,  etc."1  An  absolute  distinc- 
tion can  be  drawn  between  insanity  and  sanity  no 
more  than  it  can  be  drawn  between  a  disease  of  any 
other  part  of  the  body  and  a  healthy  condition  of 
that  part.  There  are  degrees  in  the  extent  to  which 
the  mind  can  be  diseased  and  a  variety  of  ways  in 
which  it  may  be  diseased  as  indicated  in  the  follow- 
ing quotation :  "To-day  the  medico-legal  expert  very 
often  declares  irresponsibility  on  account  of  moral 
anomalies  or  of  nervous  troubles  which  have  an  in- 
fluence upon  the  temperament  or  character  rather 
than  upon  the  intelligence  of  the  accused.  They 
have  gone  further  and  have  found  a  cause  for  the 
exclusion  of  responsibility  in  the  sway  of  a  passion ; 
in  suggestion  (not  that  of  hypnotism,  but  the  sug- 
gestion exercised  upon  a  feeble  mind) ;  or,  again, 
in  the  obsession  produced  by  an  idea  which  has 
taken  possession  of  a  brain,  although  the  obsessed 
person  does  not  present  any  symptom  of  delirium; 
or  finally,  in  the  lack  of  a  moral  sense,  or  the  moral 
inferiority  of  certain  delinquents  who  consequently 
have  no  other  rule,  no  other  criterion  of  conduct 
than  their  egoistic  interest,  without  any  repugnance 
for  cruel  or  unjust  acts."2  Thus  it  is  essential 
that  the  medico-legal  expert  shall  be  free  to  diagnose 
the  condition  of  the  accused  as  he  would  in  any 
other  case  and  not  be  forced  to  give  a  categorical 
answer. 

Closely  connected  with  this  form  of  answer  has 

*E.  Ferri:  Op.  cit.  p.  172. 

8  R.  Garofalo :  in  the  Archives  d'anthropologie  criminelle, 
June,  1906. 

325 


CRIMINAL     PROCEDURE 

been  the  question  of  responsibility.  A  categorical 
answer  has  been  required  because  upon  it  has  usu- 
ally depended  the  decision  of  the  judge  or  jury  as 
to  the  responsibility  of  the  accused.  But  this  has 
been  a  simple  and  naive  conception  of  the  situation. 
It  has  been  a  failure  to  recognize  that  the  respom 
sibility  must  vary  not  only  according  to  the  degree 
and  character  of  the  disease  but  also  according  to 
certain  psychological  and  social  considerations. 
Thus  the  medico-legal  expert  while  testifying  about 
a  purely  medical  matter  is  also  deciding  a  question 
which  is  in  part  psychological  and  social.  As 
Saleilles  has  put  one  phase  of  it,  the  doctor  is  called 
upon  "to  pronounce,  no  more  upon  what  is  in  his 
province,  the  existence  of  a  mental  malady,  but 
upon  a  psychological  question,  the  relation  of  this 
morbid  state  to  the  existence  or  the  degree  of  legal 
responsibility;  or  again,  supposing,  as  will  be  the 
case  ordinarily,  that  the  doctor  has  given  his  con- 
clusions upon  this  very  question  of  the  responsi- 
bility, it  will  be  the  judge,  invested  with  the  right 
to  pass  beyond  and  to  judge  in  his  turn  the  judg- 
ment of  the  doctor,  who  will  reform  it  and  will 
decide  upon  other  bases  a  question  of  psychology, 
which  nevertheless  depends  upon  a  state  of  patho- 
logical morbidity.  It  is  a  confusion  of  all  the 
I  roles."1 
The  answer,  therefore,  to  the  first  question,  as  to 
how  a  medico-legal  expert  is  to  testify,  is  that  he 
should  be  permitted  to  diagnose  the  condition  of 
the  accused  as  he  would  in  any  other  case.  We 
1  op.  dt.  p.  74. 


EVIDENCE 

must  now  consider  the  second  question  as  to  the 
influence  his  testimony  is  to  have  upon  the  decision. 
As  we  have  seen,  his  testimony  which  is  purely 
medical  has  very  frequently  in  practise  an  influence 
upon  the  decision  of  a  question  which  is  partly 
psychological  and  social.  This  is  manifestly  wrong, 
But  within  a  purely  medical  sphere  his  influence 
might  be  greatly  increased.  To-day  the  question 
as  to  whether  or  not  a  person  accused  of  crime  is 
insane  is  frequently  decided  by  a  judge  or  jury. 
This  is  manifestly  absurd  since  a  judge  or  jury  can 
have  no  special  knowledge  of  insanity  or  any  other 
disease.  And  yet  it  has  been  defended  by  a  dis- 
tinguished English  jurist  in  the  following  words: 
"It  is  impossible  to  say  what  an  expert  is  to  be  if 
he  is  not  to  be  a  witness  like  other  witnesses.  If 
he  is  to  decide  upon  medical  or  other  scientific  ques- 
tions connected  with  the  case  so  as  to  bind  either 
the  judge  or  the  jury,  the  inevitable  result  is  a 
divided  responsibility  which  would  destroy  the 
whole  value  of  the  trial.  If  the  expert  is  to  tell  the 
jury  what  is  the  law  say  about  madness — he  super- 
sedes the  judge.  If  he  is  to  decide  whether  in  fact 
the  prisoner  is  mad,  he  supersedes  the  jury.  If 
he  is  only  to  advise  the  court,  is  he  or  is  he  not  to 
do  so  publicly  and  to  be  liable  to  cross-examina- 
tion?"1 Throughout  this  quotation  it  is  implied 
that  expert  testimony  is  to  be  contradictory,  which 
is  a  subject  we  shall  discuss  further  on.  The  ex- 
pert will,  of  course,  not  supersede  the  judge  in 

1 J.  F.  Stephen :  A  History  of  the  Criminal  Law  of  Eng- 
land, London,  1833,  Vol.  I,  p.  575. 
327 


CRIMINAL     PROCEDURE 

expounding  the  law  unless  the  law  pretends  to 
define  madness.  But  he  certainly  should  super- 
sede the  jury  in  deciding  whether  or  not  a  prisoner 
is  mad,  because  a  jury  is  quite  incompetent  to 
judge  such  a  question.  And  this  will  by  no  means 
divide  the  responsibility  for  the  final  decision  be- 
cause this  decision  of  the  expert  will  only  furnish 
one  of  the  necessary  data  upon  which  the  final  de- 
cision is  to  be  based. 

Therefore  the  question  as  to  whether  a  defend- 
ant is  diseased  and  if  so  as  to  the  character  and 
degree  of  his  disease,  whether  it  be  insanity,  epi- 
lepsy, susceptibility  to  suggestion  or  any  other 
disease  should  be  left  entirely  to  an  expert  or  to  a 
commission  or  jury  of  experts.  Ferri  has  shown 
why  this  power  has  been  given  to  judges  and  juries 
in  the  following  words :  "This  pretension  born 
of  this  widespread  prejudice,  the  effect  of  the  old 
spiritualistic  ideas  and  sustained  by  Kant  himself, 
that  the  judging  of  'diseases  of  the  mind'  belongs 
to  the  philosopher  rather  than  to  the  doctor,  is 
nourished  by  preoccupation  with  social  defense; 
because  it  is  thought  that  to  admit  infirmity  of 
mind  and  to  exclude  moral  liberty  is  to  put  the 
dangerous  criminal  at  liberty.  But  this  preoccu- 
pation would  disappear,  when  once  has  been  sub- 
stituted, as  we  demand,  the  foundation  of  social 
responsibility  for  that  of  moral  liberty."1 

It  is  probable  that  the  medical  profession  itself 
has  not  done  enough  to  change  this  antiquated 
conception  of  responsibility.  "There  has  been  a 

1  Op.  dt.  pp.  522-523- 

328 


EVIDENCE 

regrettable  tendency  on  the  part  of  the  medical 
profession  to  accept  the  conception  of  responsi- 
bility and  to  endeavor  to  fit  it  into  harmony  with 
the  medical  facts.  Such  an  attempt  is  foredoomed 
to  failure  and  can  only  lead  to  endless  futilities 
and  absurdities.  The  idea  of  responsibility  is  an 
antique  metaphysico-juridical  conception  which 
has  done  good  service  in  its  time,  but  it  belongs  to 
the  lawyer's  province,  not  the  doctor's ;  it  is  the 
lawyer's  business  to  bring  it  into  line  with  the 
facts,  and  doctors  have  been  misguided,  though 
with  the  best  and  most  humane  of  motives,  in  en- 
deavoring to  bring  it  into  harmony  with  the  data 
of  their  own  science."1 

But  while  the  medico-legal  expert  should  have  the 
power  of  deciding  what  is  the  pathological  condi- 
tion of  the  defendant  it  is  not  necessary  that  he 
should  make  the  final  decision  in  any  case.  As  has 
already  been  stated  psychological  and  social  con- 
siderations must  be  taken  into  account  as  well  as 
medical.  While  the  medico-legal  expert  should  have 
the  function  of  proving  certain  facts  these  facts 
should  be  weighed  and  judged  in  their  relation  to 
other  facts  by  a  judge  who  has  had  an  anthropo- 
logical, psychological  and  sociological  training.  The 
limitations  upon  the  functions  of  the  medico-legal 
expert  are  recognized  by  a  French  neurologist  in 
the  following  passage:  "It  will  be  noticed  how 
much  from  this  point  of  view  the  role  of  the  ex- 
perts is  different  from  that  of  the  judges  (magis- 
trates or  jurors).  For  the  judges  the  problem  of 

1Havelock  Ellis:  The  Criminal 
329 


CRIMINAL     PROCEDURE 

responsibility  is  much  more  complex;  it  presents 
itself  in  all  its  generality.  Thus  the  judge  must 
take  special  notice  of  the  intention  (which  is  an 
element  of  moral  responsibility).  The  case  of 
legitimate  defense,  for  example,  which  will  excuse 
certain  unlawful  and  criminal  acts  for  the  judge 
must  not  be  taken  into  consideration  by  the  doctor. 
Generally  speaking,  the  circumstances  of  the  deed, 
foreign  to  the  person  who  committed  it,  so  impor- 
tant in  the  examination  and  for  the  judgment,  are 
nothing  for  the  doctor.  He  has  to  consider  in  the 
circumstances  only  what  can  enlighten  him  as  to 
the  person  himself,  as  to  the  state  of  his  nervous 
system.  The  doctor  starts  out  from  the  deed 
materially  established  and  tries  to  find  out  by  psy- 
cho-pathological analysis  of  the  person  if  this  per- 
son has  determined  upon  this  act  with  a  nervous 
system  intact,  with  healthy  or  diseased  nervous 
centers.  The  question  presented  to  jurors  upon 
the  guilt  of  a  person  is  entirely  different  from  the 
question  presented  to  experts  upon  the  responsi- 
bility. One  can  be  entirely  responsible  of  an  act 
of  which  one  is  not  guilty.  A  juror  can  acquit  a 
person  declared  responsible  by  the  doctor,  without 
there  being  any  contradiction  between  the  two 
verdicts ;  but  a  juror  ought  not  to  be  able  to  con- 
demn a  person  whom  the  doctor  declares  irrespon- 
sible; physiological  responsibility  is  a  necessary 
but  not  sufficient  element  of  guilt.  This  shows 
incidentally  what  would  be  the  error  of  those  who 
would  like  to  make  the  whole  examination  medical 
330 


EVIDENCE 

expert  testimony  and  to  replace  the  judges  with 
doctors."1 

Certain  criticisms  might  be  made  of  the  concep- 
tion of  penal  responsibility  revealed  in  this  citation 
but  the  citation  shows  the  complexity  of  the  ele- 
ments which  enter  into  a  decision  and  which  a 
medico-legal  expert  as  such  could  not  judge  wisely. 
It  requires  on  the  contrary  a  judge  capable  of  com- 
prehending all  the  considerations  involved  and  of 
weighing  and  judging  them  impartially. 

Having  considered  how  the  medico-legal  expert 
is  to  testify  and  what  weight  his  testimony  is  to  have 
it  is  now  necessary  to  consider  the  personnel  of  the 
medico-legal  experts.  They  are  usually  doctors; 
without  any  special  training.  Some  of  the  mistakes 
they  make  are  due  to  the  fact  that  the  science  of 
legal  medicine  is  not  yet  fully  developed.  But 
others  are  due  to  their  lack  of  a  special  knowledge 
which  would  prevent  them  from  making  mistakes 
of  omission  by  failing  to  note  certain  data  and 
mistakes  of  commission  by  mistaking  the  signifi- 
cance of  other  data.2  Special  courses  in  legal 
medicine  have  been  established  at  the  medical 
schools  at  Lyons  and  Paris  in  France,  at  Lausanne 
in  Switzerland  and  elsewhere  in  Europe.  In  addi- 
tion to  this  training  in  the  schools  there  should  be 
clinics  in  prisons,  insane  asylums  and  morgues. 

Closely  connected  with  the  question  of  the  per- 
sonnel of  the  medico-legal  experts  is  that  of  their 

*J.  Grasset :  Demifoits  et  demiresponsables,  Paris,  1907, 
pp.  222-223. 

3  A.  Lacassagne :  in  the  Archives  d'anthropologit  cnm* 
inelle,  Lyons,  1897. 

331 


CRIMINAL     PROCEDURE 

relation  towards  other  branches  of  procedure.  The 
usual  custom  is  for  each  side  to  summon  medico- 
legal  experts.  These  experts  are,  of  course,  ex- 
pected to  look  for  the  truth  only  and  to  give 
unbiased  testimony.  But  it  is  natural  and  almost 
inevitable  that  an  expert  should  be  influenced  by  the 
side  which  has  called  him  since  his  desire  is  to 
please  it  in  order  to  be  called  again  and  earn  the 
fees.  When,  therefore,  there  is  any  doubt  an  ex- 
pert can  very  easily  decide  for  his  own  side.  Thus 
a  public  prosecutor  will  keep  on  hand  experts  who 
will  always  or  nearly  always  testify  against  insan- 
ity. These  experts  are,  therefore,  prosecutors  like 
the  public  prosecutor  himself.  This  fact  is  recog- 
nized by  Stephen,  who  defends  contradictory  expert 
testimony:  "There  have  been,  no  doubt,  and  there 
still  occasionally  are,  scenes  between  medical  wit- 
nesses and  the  counsel  who  cross-examine  them 
which  are  not  creditable,  but  the  reason  is  that  medi- 
cal witnesses  in  such  cases  are  not  really  witnesses 
but  counsel  in  disguise  who  have  come  to  support 
the  side  by  which  they  are  called."1  In  like  manner 
the  defense  secur<  -,  experts  to  oppose  and  contra- 
dict the  opinion  of  the  experts  for  the  prosecution 
and  these  experts  are  in  reality  counsel  for  the  de- 
fense. 

This  contradictory  system  of  expert  testimony 
has  probably  grown  out  of  the  fact  that  experts  do 
not  always  agree.  It  has,  therefore,  been  consid- 
ered necessary  to  have  a  variety  of  expert  opinions 
presented  and  then  to  have  the  decision  made  by 

*J.  F.  Stephen:    Op.  cit.  p.  576. 
332 


EVIDENCE 

some  one  else.  But  because  experts  who  know 
something  about  the  question  at  issue  do  not  always 
agree  and  are  likely  to  make  mistakes  sometimes 
is  no  reason  for  leaving  the  decision  to  lawyers 
and  jurors  who  know  nothing  about  it.  As  Ellis 
has  put  it:  "Experts  will  often  differ  as  lawyers 
often  differ,  but  the  lawyer  is  not  more  com- 
petent to  decide  on  the  science  of  the  expert  than 
the  expert  is  competent  to  decide  on  the  law  of  the 
lawyer.  It  is  not  for  the  interests  of  justice  that 
one  expert,  representing  perhaps  only  his  own 
opinion,  should  weigh  against  another  representing 
perhaps  the  general  body  of  scientific  opinion  on 
that  subject.  It  is  not  calculated  for  the  ends  of 
justice  that  the  judge,  however  quick  and  intelli- 
gent, should  have  to  pronounce  on  matters  con- 
cerning which  he  can  only  speak  as  a  layman,  and 
necessarily  falls  into  frequent  errors  of  judgment."1 

As  we  have  already  seen,  the  decision  of  these 
medical  questions  should  be  left  to  the  medico-legal 
expert.  His  role  is  an  entirely  impartial  one,  that 
of  examining  the  facts  and  judging  them  like  a 
judge.  Hence  to  make  expert  testimony  contra- 
dictory is  to  make  the  judgment  contradictory, 
which  is  a  contradiction  in  terms.2 

Under  the  existing  system  a  number  of 
might  be  suggested  of  choosing  experts  which 
would  make  them  non-partisan.  Since  the  func- 
tions of  experts  are  like  those  of  judges  they  might 

'Havelock  Ellis:  Op.  cit. 

2  Dr.  Victor  Parant :  La  designation  contradictoire  des 
experts  devant  les  tribunaux,  in  the  Revue  penitentiaire, 
Paris,  March,  1907. 

333 


CRIMINAL     PROCEDURE 

be  chosen  like  jurors  from  a  list  prepared  before- 
hand, the  right  of  challenging  being  given  to  both 
sides.  Or  the  two  sides  could  choose  in  concur- 
rence from  this  list.  When  a  specialist  not  on  the 
list  is  needed  he  could  be  designated  by  the  judge 
while  each  side  would  have  the  right  to  challenge.1 
But  better  still  would  be  the  organization  of  a 
system  of  medical  jurisprudence.  Such  a  system 
has  already  been  partially  developed  in  Germany. 
In  each  province  there  is  a  college  of  experts  to 
which  appeal  can  be  made  from  the  decision  of  an 
expert  at  a  court  of  first  instance.  At  the  capital 
there  is  a  scientific  deputation  which  acts  as  a 
court  of  final  appeal.2  To  have  a  regular  judicial 
organization  there  should  be  one  or  more  profes- 
sional experts  attached  to  each  court.  There 
should  be  courts  of  appeal  made  up  of  the  ablest 
experts.  Then  if  there  was  a  difference  of  opinion 
among  experts  or  the  decision  in  a  certain  case  was 
contested  the  question  at  issue  could  be  referred  to 

/"this  court  of  appeal  for  decision.  The  need  for 
such  courts  of  appeal  and  a  supreme  medico-legal 
tribunal  is  insisted  upon  by  Ellis.  "Special  points 
involving  special  knowledge  or  skill  must  be  sub- 

^""""mitted  to  a  commission  of  experts,  and  the  verdicts 
of  the  commission  on  these  special  points  must  be 
accepted  by  the  court,  though  subject  to  an  appeal 
to  a  supreme  medico-legal  tribunal.  Some  such 
method  as  this  is  now  being  widely  demanded  by 
intelligent  opinion  in  the  interests  of  justice."8 

1Dr.  Victor  Parant:  Op.  cit. 

*  Louis    Moricard :    De    la    responsibility    partielle    ou    at- 
tenu.ee,  thesis  at  the  Facultc  de  droit,  Paris,  1898. 
•Havelock  Ellis:  Op.  cit. 

334 


EVIDENCE 

For  the  establishment  of  such  a  system  is  needed 
the  development  of  a  body  of  professional  experts. 
To  accomplish  this  it  will  be  necessary  to  make  the 
profession  of  medico-legal  expert  a  regular  career 
with  a  salary  sufficient  to  attract  able  medical  stu- 
dents. These  students  would  specialize  in  the 
courses  in  legal  medicine  given  in  the  medical 
school  and  it  is  possible  that  in  course  of  time 
schools  of  legal  medicine  will  be  established. 
Medico-legal  laboratories  should  be  established  in 
connection  with  the  courts  of  appeal  or  in  other 
central  places  where  experiments  in  certain  cases 
could  be  made,  where  students  could  obtain  clinical 
experience  and  where  the  science  of  legal  medicine 
would  be  developed  very  rapidly.1 

Medico-legal  data  should  be  accumulated  and 
preserved  in  museums  in  connection  with  these 
laboratories.  Rules  for  the  examination  of  cases 
should  be  established  and  forms  for  keeping  the 
records  of  cases  uniformly.  By  these  means  med- 
ical jurisprudence  would  be  greatly  developed  on 
a  thoroughly  scientific  basis. 

Turning  now  from  medico-legal  expert  testimony 
to  other  forms  of  expert  testimony  we  find  that 
such  testimony  has  to  be  given  by  chemists,  physi- 
cists, mineralogists,  zoologists,  botanists,  etc.,  and 
with  regard  to  firearms,  handwriting,  photography, 
etc.  Expert  testimony  can  sometimes  be  furnished 
by  a  very  ignorant  and  simple-minded  person  about 
a  subject  which  is  not  a  matter  of  general  knowledge. 

1  A.  Lacassagne:  in  the  Archives  d'anthropologie  crim- 
inelle,  Lyons,  1897. 

335 


CRIMINAL    PROCEDURE 

In  fact  it  would  not  be  possible  to  enumerate 
the  subjects  about  which  expert  testimony  may  be 
required.  But  in  the  case  of  no  one  of  these 
subjects  is  testimony  needed  so  frequently  nor  is  it 
so  necessary  to  establish  a  judicial  organization  as  in 
/"  the  case  of  legal  medicine.  However,  a  number  of 
the  points  we  have  discussed  with  regard  to  medico- 
legal  testimony  are  just  as  true  of  other  kinds  of 
expert  testimony,  as,  for  example,  that  it  should  be 
non-partizan  and  that  it  should  always  be  remun- 
erated sufficiently  well  to  secure  the  best  experts. 
Expert  testimony  in  general  will  always  be  a 
superior  means  of  information  at  the  disposal  of 
justice,  a  new  form  of  legal  proof  of  which  more 
and  more  use  should  be  made.  The  reason  for  this 

\is  that  judges  are  not  competent  to  judge  technical 
matters.  But  while  the  judge  cannot  be  expected 
to  have  all  this  technical  knowledge  he  should  have 
a  sufficiently  general  knowledge  to  know  when  such 
expert  testimony  should  be  used.  Courses,  there- 
fore, should  be  given  in  law  schools  acquainting 
those  who  may  become  judges  with  the  general 
nature  of  expert  testimony  and  with  the  occasions 
on  which  such  testimony  is  needed. 

The  above  discussion  of  medico-legal  and  other 
forms  of  expert  testimony  shows  how  the  variety 
of  evidence  required  in  criminal  procedure  has  in- 
creased. In  the  days  when  it  was  considered  nec- 
essary only  to  prove  the  commission  of  a  criminal 
act  the  evidence  required  was  comparatively  simple. 
But  as  we  have  seen  the  principle  of  individualiza- 
tion  is  being  applied  more  and  more  so  that  evidence 
336 


EVIDENCE 

as  to  the  character  of  the  criminal  is  being  intro- 
duced into  procedure.  Furthermore  the  evidence 
as  to  the  commission  of  a  crime  is  becoming  more 
complex.  It  is,  therefore,  necessary  to  make  a 
scientific  classification  of  evidence  which  will  serve 
as  a  practical  basis  for  a  system  of  evidence  based 
on  scientific  principles. 

Generally  speaking  all  the  evidence  presented  in 
the  course  of  a  criminal  trial  is  legal  evidence.  But 
this  term  applies  more  specially  to  the  evidence 
furnished  in  proof  of  the  commission  of  a  criminal 
act.  As  we  have  seen,  this  proof  is  for  the  purpose 
of  determining  whether  there  is  any  need  for  crim- 
inal treatment.  It  is  also  a  necessary  protection  to 
the  individual  member  of  society. 

But  when  by  means  of  legal  evidence  the  com- 
mission of  a  crime  has  been  proved  it  becomes  nec- 
essary to  introduce  evidence  with  regard  to  the 
nature  of  the  criminal.  The  second  class  of  evi- 
dence, therefore,  is  anthropological.  By  means  of 
physiological  and  psychological  examinations  evi- 
dence can  be  secured  which  will  determine  the  kind 
of  pathological  treatment  needed.  The  nature  of 
the  criminal  has  been  influenced  by  environment 
also  and  this  is  of  importance  especially  in  the  case 
of  occasional  criminals.  The  third  class  of  evidence, 
therefore,  is  sociological.  By  gathering  as  much 
data  as  possible  about  the  past  history  of  the  crim- 
inal can  be  determined  the  social  influences  which 
have  acted  upon  him. 

The  means  for  gathering  evidence  should  be  as 
scientific  as  possible.    In  the  first  place  the  personnel 
22  337 


CRIMINAL     PROCEDURE 

for  gathering  evidence  should  have  as  much  scien- 
tific training  as  possible.  We  have  already  dis- 
cussed in  the  chapter  on  the  police  agency  such 
training  for  the  police.  In  the  chapter  on  prosecu- 
tion and  defense  we  have  proposed  that  such  work 
should  be  done  by  those  who  are  preparing  to  be- 
come public  prosecutors  and  defenders  and  later  on 
judges.  And  as  more  use  is  made  of  anthropolog- 
ical evidence  the  scope  of  the  system  of  medical 
jurisprudence  we  have  outlined  could  be  enlarged 
so  that  the  medico-legal  experts  would  be  trained 
as  criminal  anthropologists  also  and  could  gather 
the  necessary  anthropological  data. 

A  number  of  scientific  devices  can  be  used  for 
gathering  evidence.  The  sphygmograph  is  an  in- 
strument which  reveals  the  inner  emotions.  It  has 
already  been  used  for  detecting  a  guilty  person  and 
has  great  possibilities  of  usefulness.  Hypnotism 
may  be  used  for  obtaining  evidence  though  it  should 
be  used  with  great  care,  at  least  until  scientific  prin- 
ciples for  its  use  have  been  worked  out  inductively. 
Criminals  could  be  detained  under  observation  for 
a  period  of  time  during  which  valuable  physiolog- 
ical and  psychological  data  can  be  gathered  con- 
cerning them.  These  are  but  suggestions  of  the 
scientific  means  which  can  be  used  in  gathering 
evidence. 

After  gathering  evidence  it  becomes  necessary 

•    to  estimate  its  value.     In  the  case  of  testimony  its 
value   depends   upon   its  veracity.     The   standards 

]  according  to  which  the  value  of  testimony  has  been 
judged  have  been  very  naive.     Generally  speaking 
338 


EVIDENCE 

testimony  has  been  considered  veracious  except 
under  certain  exceptional  circumstances  which  are 
indicated  by  the  law  of  evidence.  The  oath  has 
been  regarded  as  a  guarantee  of  the  veracity  of 
testimony.  But  there  have  also  been  strong  pro- 
tests against  the  oath.  It  has  been  contended  that 
the  oath  cannot  confer  the  capacity  for  telling  the 
truth.  The  judge  cannot  be  certain  that  the  wit- 
ness is  veracious  if  he  has  no  other  evidence  of  the 
truth  of  his  testimony.  The  oath  is  useless  for  the 
moral  and  for  the  religious  man  for  they  will  try  to 
tell  the  truth  without  an  oath.  It  is  also  useless 
for  the  irreligious  man  who  is  also  of  a  low  moral 
character,  for  the  oath  will  not  influence  him  to  tell 
the  truth.  The  Swiss  constitution  says  that  no  one 
shall  be  forced  to  perform  a  religious  act  and  that 
therefore  no  one  shall  be  forced  to  take  an  oath.1 
The  oath  is  not  compatible  with  liberty  of  conscience 
and  belief.  Especially  absurd  has  seemed  the  oath 
of  the  accused.  The  canonical  law  in  creating  the 
inquisitorial  procedure  in  the  thirteenth  century 
submitted  the  accused  to  the  oath  and  this  cus- 
tom entered  the  law  of  almost  all  of  Europe,  the 
principal  exception  being  England  where  it  was 
not  required  on  account  of  the  accusatory  prin- 
ciple.2 The  oath  in  this  case  necessitated  the 
perjury  of  the  guilty  accused.  The  absurdity  of 
this  was  shown  by  Beccaria  in  these  words :  "The 
laws  are  again  in  contradiction  with  nature  when 

1 C.    Stooss :    in    the    Archiv    fiir    Kriminal-Ant hropologie, 
July,   1905. 

2  A.   Esmein :   Le  "Criminal  Evidence   Act"  de   1898  et  le 
serment  des  accuses  en  Angleterre,  Paris,  1898. 
339 


CRIMINAL     PROCEDURE 

they  demand  of  an  accused  the  oath  to  tell  the 
truth  when  he  has  the  greatest  interest  to  sup- 
press it;  as  if  one  could  be  obliged  in  good  faith, 
by  an  oath,  to  contribute  to  one's  own  destruction; 
as  if  the  voice  of  interest  would  not  stifle  in  most 
men  that  of  religion."1 

What  then  is  the  utility  of  the  oath.  It  may  se- 
cure a  certain  amount  of  subjective  truth  but  very 
little  if  any  objective  truth.2  That  is  to  say,  by 
the  threat  of  punishment  which  its  religious  char- 
acter implies  it  may  remove  the  intention  to  hide 
the  truth  but  this  does  not  necessarily  increase  the 
capacity  for  telling  the  truth.  The  Romans  seem 
to  have  regarded  the  oath  as  guaranteeing  subjec- 
tive truth  only  for  Mommsen  tells  us  that  in  the 
Roman  penal  procedure  witnesses  swore  to  what 
they  thought  they  had  seen  or  heard  and  not  to 
what  they  knew.3  In  other  words  it  was  an  oath 
of  good  faith. 

The  oath  may  help  a  little  to  secure  objective 
truth  by  increasing  the  attentiveness  of  the  witness. 
As  Munsterburg  has  expressed  it :  "It  not  only  sup- 
presses the  intentional  lie,  but  it  focuses  the  atten- 
tion on  the  details  of  the  statement.  It  excludes 
the  careless,  hasty,  haphazard  remembrance  and 
stirs  the  deliberate,  attention  of  the  witness.  He 
feels  the  duty  of  putting  his  best  will  into  the  effort 
to  reproduce  the  whole  truth  and  nothing  but  the 

1Op.  dt.  Ch.  XVIII. 

a  Hugo  Munsterburg :  in  the  Times  Magazine,  New  York, 
March,  1907. 

8  C.  Stooss :  in  the  Archiv  filr  Kriminal-Anthropologie, 
July,  1905 

340 


EVIDENCE 

truth.  No  psychologist  will  deny  this  effect.  He 
will  ask  only  whether  the  intention  alone  is  suffi- 
cient for  success  and  whether  the  memory  is  really 
improved  in  every  respect  by  increased  attention. 
We  are  not  always  sure  that  our  functions  run 
best  when  we  concentrate  our  effort  on  them  and 
turn  the  full  light  of  attention  on  the  details."1 
The  utility  of  the  oath  for  securing  objective 
truth  is,  therefore,  very  slight  indeed.  If  then 
the  oath  is  to  be  used  at  all  it  will  have  its  greatest 
utility  in  securing  subjective  truth  from  religious 
persons  who  are  so  weak  morally  as  to  be  likely 
to  give  false  testimony  knowingly  if  not  prevented 
by  the  threat  of  punishment  implied  in  the  oath. 
For  the  irreligious  the  oath  is  not  only  useless 
but  it  is  an  imposition  upon  their  freedom  of  con- 
science and  it  should  be  substituted  in  their  case 
by  a  simple  affirmation  of  intention  to  tell  the 
truth. 

There  is  a  pretty  general  confidence  in  the  verac 
ity  of  testimony.  If  there  is  any  suspicion  it  is  of  \ 
the  intention  rather  than  of  the  ability  of  a  witness 
to  tell  the  truth.  It  is  subjective  rather  than  objec- 
tive truth  that  is  questioned.  This  confidence  has 
probably  grown  out  of  the  fact  that  most  of  our 
knowledge  is  based  on  testimony  and  that  we  have 
an  instinctive  dislike  of  uncertainty.  The  guar- 
antee of  veracity  which  the  oath  is  supposed  to 
furnish  confirms  this  confidence.  But  as  we  have 
seen  the  oath  is  a  very  slight  guarantee  and  we 
must  look  for  another  test  of  veracity. 

*Op.  dt. 

34i 


.  i  - 


CRIMINAL    PROCEDURE 

During  the  last  few  decades  experimental  psy- 
chology has  been  so  greatly  developed  as  to  have 
become  an  almost  independent  science.  One  of  the 
subjects  to  which  a  great  deal  of  attention  has  been 
given  is  that  of  the  reliability  of  memory.  A  mag- 
azine is  devoted  to  it  in  Germany  and  it  has  a  litera- 
ture of  its  own.  Since  this  is  the  most  important 
psychological  problem  connected  with  legal  testi- 
mony this  new  science  is  of  the  greatest  practical 
significance  for  procedure.  And  yet  no  use  has 
yet  been  made  of  it  in  the  administration  of  justice. 
Experts  are  called  into  court  to  decide  questions  as 
to  insanity,  handwriting,  etc.,  but  no  psychological 
expert  has  yet  been  summoned  to  test  the  veracity 
of  a  witness  not  merely  with  regard  to  his  intention 
to  tell  the  truth  but  also  with  regard  to  his  ability 
to  do  so. 

Occurrences  are  constantly  taking  place  which 
reveal  to  what  an  extent  testimony  is  inaccurate. 
This  frequently  happens  in  trials.  For  example, 
in  a  trial  in  Germany  three  witnesses,  an  architect, 
a  teacher,  and  an  elevator  man  testified  each  as  fol- 
lows as  to  how  they  went  down  together  in  an  ele- 
vator; the  architect,  that  all  were  standing  up,  the 
teacher,  that  he  sat  and  the  others  stood,  the  ele- 
vator man,  that  he  stood  and  the  others  sat.1  Now 
it  is  evident  that  at  least  two  and  possibly  all  three 
of  these  witnesses  were  not  telling  the  truth.  And 
since  it  is  very  doubtful  that  they  were  lying  inten- 
tionally this  inaccuracy  must  have  been  due  to  un- 
reliability of  memory.  Many  experiments  have 

1  Archives  d'anthropologie  criminelle,  Lyons,  March,   1906. 
342 


EVIDENCE 

been  made  which  show  to  how  great  an  extent 
testimony  is  untrustworthy.  And  these  experiments 
do  not  fully  reveal  the  inaccuracy  of  ordinary  tes- 
timony for  the  conditions  of  every  day  life  are  not 
as  a  rule  entirely  reproduced.  A  witness  is  usu- 
ally unaware  at  the  time  of  an  occurrence  about  ) 
which  he  has  to  testify  later  on  that  he  will  ever  | 
have  to  testify  about  it.  In  a  laboratory  expert 
ment,  on  the  contrary,  the  witness  usually  knows 
that  he  will  have  to  testify  about  the  thing  or  occur- 
rence which  he  has  seen  and  therefore  pays  special 
attention.  However,  even  this  difference  has  been 
removed  in  some  experiments.  Such  was  the  case  V 
in  an  experiment1  made  at  a  meeting  of  the  "Asso- 
ciation of  Legal  Psychology  and  Psychiatry  of  the 
Grand-duchy  of  Hesse"  at  Gottingen.  During  one 
of  the  sessions  a  clown  and  a  negro  rushed  in  and 
after  an  excited  altercation  rushed  out.  Each  per- 
son in  the  audience,  for  whom  this  occurrence  was 
quite  unexpected,  was  asked  to  write  an  account 
of  it.  Forty  reports  were  handed  in  and  of  these 
there  was  only  one  whose  omissions  of  important 
details  amounted  to  less  than  twenty  per  cent. 
Fourteen  omitted  twenty  to  forty  per  cent,  of  the 
important  details,  twelve  omitted  forty  to  fifty 
per  cent.,  and  thirteen  more  than  fifty  per  cent. 
There  were  only  six  that  did  not  make  absolute 
misstatements  of  fact ;  in  twenty- four  up  to  ten  per 
cent,  of  the  statements  were  manufactured,  and  in 
ten  more  than  ten  per  cent,  of  the  statements  were 

1 L.    W.    Weber :    in    the    Beitrage    zur    Psychologic    der 
Aussage,  Vol.  IV,  also  Hugo  Miinsterburg,  Op.  cit. 
343 


CRIMINAL    PROCEDURE 

absolutely  false.  We  have  no  space  to  describe 
any  more  of  these  experiments  but  they  all  show 
to  how  considerable  an  extent  all  testimony  is  in- 
accurate. We  must  now  consider  to  what  causes 
this  inaccuracy  is  due  and  how  the  data  of  experi- 
mental psychology  can  be  applied  to  legal  testi- 
mony. 

To  determine  the  causes  of  erroneous  testimony 
we  must  go  back  of  the  memory  from  which  this 
testimony  comes.  "The  sources  of  error  begin,  of 
course,  before  the  recollection  sets  in.  The  obser- 
vation may  be  defective  and  illusory;  wrong  asso- 
ciations may  make  it  imperfect;  judgments  may 
misinterpret  the  experience;  and  suggestive  influ- 
ences may  falsify  the  data  of  the  senses.  Every 
one  knows  the  almost  unlimited  individual  differ- 
ences in  the  power  of  correct  observation  and  judg- 
ment. Every  one  knows  that  there  are  persons 
who,  under  favorable  conditions,  see  what  they  are 
expected  to  see.  The  prestidigitators,  the  fakirs, 
the  spiritualists,  could  not  play  their  tricks,  if  they 
could  not  rely  on  associations  and  suggestions,  and 
it  would  not  be  so  difficult  to  read  proofs  if  we  did 
not  usually  see  the  letters  which  we  expect."1 

The  primary  cause  of  error  may  be  the  abnormal 
state  of  the  sensory  organs.  The  inability  of  these 
organs  to  convey  correct  impressions  of  occurrences 
external  to  the  body  may  be  due  to  congenital 
causes.  Or  it  may  result  from  deep  seated  nervous 
diseases  such  as  epilepsy,  alcoholism,  hysteria, 
mental  degeneracy,  neurasthenia,  cerebral  syphilis, 

*H.  Munsterburg:  Op,  cit. 

344 


EVIDENCE 

etc.1  Or  it  may  result  from  a  temporary  condi- 
tion such  as  a  wound  in  the  head  or  a  high  state 
of  emotion.  But  even  if  the  sensory  organs  convey 
faithful  impressions  of  these  external  occurrences 
these  impressions  may  become  falsified  within 
the  brain.  The  judgment  may  misconstrue  these 
sensory  impressions.  The  influence  of  age,  sex, 
profession,  belief,  etc.,  must  be  noted  in  this  con- 
nection. Each  impression  on  entering  the  brain 
tends  to  awaken  the  memory  of  past  impressions. 
These  past  impressions  by  combining  with  the  new 
impressions  and  in  course  of  time  by  filling  lapses 
in  the  memory  of  the  new  impression  tend  to  render 
the  memory  of  that  impression  inaccurate.  After 
it  has  entered  the  memory  an  impression  may  be 
modified  from  outside  by  means  of  suggestion. 
These  are  but  suggestions  of  the  causes  which  alone 
or  combined  tend  to  render  memory  unreliable. 

Witnesses  may  be  classified  according  to  sex  and 
age  or  according  to  their  peculiarities  in  giving 
testimony.  In  some  ways  young  children  are  good 
witnesses  since  they  have  no  beliefs  or  prejudices 
to  bias  their  testimony.  But  it  is  impossible  for 
adults  to  put  themselves  at  their  point  of  view  to 
know  how  they  see  things  since  they  have  not  as 
wide  an  outlook  as  adults  and  do  not  see  things  in 
the  same  proportion.2  Their  imagination  is  with- 
out restraint  and  they  lack  a  sense  of  responsibility. 
They  have  a  strong  suggestibility  and  lie  for  very 

1  A.   Cramer :    in   the  Beitrage   zur  Psychologic   der  Aus- 
sage,  Vol.  II. 

2  Hans    Gross :    Manuel    pratique    d'instruction    judiciaire, 
Paris,    1899. 

345 


CRIMINAL     PROCEDURE 

different  motives  or  for  no  motives  whatever.  They 
lack  an  exact  notion  of  time  and  have  a  general  ab- 
sence of  abstract  ideas.1  The  young  boy  is  usually 
a  better  witness  than  the  young  girl  because  he  ob- 
serves more  carefully.  The  young  girl  is  not  so 
good  a  witness  because  she  stays  at  home  and  sees 
little  of  the  world.  She  has  too  vivid  an  imagina- 
tion and  frequently  gives  false  testimony  for  the 
sake  of  excitement.  The  youth  are  much  absorbed 
in  themselves,  the  girl  in  her  balls,  love-affairs,  etc., 
the  young  man  in  his  work,  studies,  etc.,  so  that 
they  tend  to  be  rather  careless  in  their  observation. 
Adults  observe  carefully  what  they  notice,  but  their 
attention  follows  the  line  of  interest  and  their  ob- 
servations tend  to  become  colored  by  their  beliefs 
and  prejudices.2 

Witnesses  may  be  classified  according  to  their 
desire  to  tell  the  truth.  Those  who  do  not  intend 
to  tell  the  truth  can  very  frequently  be  found  out 
by  means  of  methods  discovered  by  experimental 
psychology  and  the  truth  forced  from  them  in  spite 
of  themselves.  But  even  those  who  desire  to  tell 
the  truth  very  frequently  fail  to  do  so  for  reasons 
which  have  been  suggested  above.  These  include 
many  types  passing  from  the  very  pathological  such 
as  the  insane,  the  paranoiac,  the  hysterical,  etc.,  to 
the  normal  or  nearly  normal  who  give  false  testi- 
mony unwittingly  on  account  of  psychological  errors 
to  which  any  normal  person  is  liable.  Witnesses 

*Dr.  Placzek:  in  the  Archiv  fur  Kriminal-Anthropologie, 
reviewed  in  the  Archives  d'anthropologie  criminelle,  Lyons, 
March,  1906. 

a  Hans  Gross,  Op,  cit. 

346 


EVIDENCE 

may  be  classified  according  to  the  types  of  mem- 
ory they  represent.  "There  are  different  types 
of  memory  and  with  a  very  crude  and  superficial 
classification  they  might  be  grouped  as  visual, 
acoustical  and  motor  types.  There  are  persons  who 
can  reproduce  a  landscape  or  a  painting  in  full, 
vivid  colors  and  with  sharp  outlines  throughout  the 
field,  while  they  would  be  unable  to  hear  internally 
a  melody  or  the  sound  of  a  voice.  There  are  oth- 
ers with  whom  every  tune  can  easily  resound  in 
recollection  and  who  can  hardly  read  a  letter  of  a 
friend  without  hearing  his  voice  in  every  word, 
while  they  are  utterly  unable  to  awake  an  optical 
image.  There  are  others  again  whose  sensorial 
reproduction  is  poor  in  both  respects;  but  they  feel 
intentions  of  movement,  as  of  speaking,  of  writ- 
ing, of  acting,  whenever  they  reconstruct  past  ex- 
perience. In  reality  the  number  of  types  is  much 
larger.  Scores  of  memory  variations  can  be  dis- 
criminated."1 

To  what  use  can  these  data  of  experimental  psy- 
chology be  put  in  practical  jurisprudence?  We 
have  seen  that  witnesses  vary  greatly  in  their  capac- 
ity to  tell  the  truth  and  that  the  value  of  their 
testimony  varies  accordingly.  This  certainly  is  a 
fact  of  great  practical  importance  for  procedure 
since  weight  should  be  given  to  testimony  in  pro- 
portion to  its  value.  How  then  is  its  value  to 
be  determined?  In  the  first  place  this  can  be  in 
part  accomplished  by  a  psychiatric  and  psychologi- 
cal examination  which  will  establish  the  principal 

1  Hugo  Munsterburg :  Op.  tit. 
347 


CRIMINAL     PROCEDURE 

psychological  characteristics  of  the  witness.  In  the 
first  part  of  this  examination  would  be  determined 
to  what  extent  if  any  a  witness  is  pathological,  that 
is  to  say,  if  his  sensory  organs  are  in  any  diseased 
condition  or  if  he  is  lacking  in  capacity  to  fix  the 
attention  or  in  ability  to  reproduce  what  he  has  seen. 
But  this  examination  should  be  carried  further  to 
determine  the  normal  psychological  peculiarities  of 
a  witness.  For  example,  by  a  simple  test  the  type 
of  memory  of  a  witness  can  be  determined  and  this 
fact  is  of  great  significance  in  estimating  the  value 
of  his  testimony  about  a  particular  occurrence. 
"Now  we  should  not  ask  a  short-sighted  man  for 
the  slight  visual  details  of  a  far-distant  scene,  yet 
it  cannot  be  safer  to  ask  a  man  of  the  acoustical 
memory  type  for  strictly  optical  recollections.  No 
one  on  the  witness-stand  is  to-day  examined  to  as- 
certain in  what  directions  his  memory  is  probably 
;  trustworthy  and  reliable ;  he  may  be  asked  what  he 
has  seen,  what  he  has  heard,  what  he  has  spoken 
how  he  has  acted,  and  yet  even  a  most  superficial 
test  might  show  that  the  mechanism  of  his  memory 
would  be  excellent  for  one  of  these  four  groups  of 
questions  and  utterly  useless  for  the  others,  how- 
ever solemnly  he  might  keep  his  oath."1  In  sim- 
ilar fashion  the  other  psychological  characteristics 
can  be  determined.  "The  courts  will  have  to  learn, 
sooner  or  later,  that  the  individual  differences  of 
men  can  be  tested  to-day  by  the  methods  of  exper- 
imental psychology  far  beyond  anything  which 
common  sense  and  social  experience  suggest. 

1  Hugo  Miinsterburg :   Op.  cit. 
348 


EVIDENCE 

Modern  law  welcomes,  for  instance,  for  identifica- 
tion of  criminals  all  the  discoveries  of  anatomists 
and  physiologists  as  to  the  individual  differences; 
even  the  different  play  of  the  lines  in  the  thumb  is 
carefully  registered  in  wax.  But  no  one  asks  for 
the  striking  differences  as  to  those  mental  details 
which  the  psychological  experiments  on  memory 
and  attention,  on  feeling  and  imagination,  on  per- 
ception and  discrimination,  on  judgment  and  sug- 
gestion, on  emotion  and  volition,  have  brought  out 
in  the  last  decade."1 

It  has  been  suggested  that  by  means  of  such  an 
examination  can  be  determined  the  "constants  of 
certitude"  of  the  witness  or  the  degree  of  accuracy 
of  his  testimony  and  that  the  value  of  his  tes- 
timony could  be  estimated  according  to  this  con- 
stant number.2  It  is  doubtful,  however,  if  this 
would  be  wise  since  the  value  of  a  person's 
testimony  varies  according  to  the  nature  of  the 
occurrence  about  which  he  is  testifying.  Such 
an  examination,  also,  would  probably  not  be  neces- 
sary for  every  witness.  It  would  be  necessary] 
when  the  testimony  was  about  a  very  complicated 
situation  and  where  the  testimony  was  contradic- 
tory. It  should  always  be  given  to  a  witness 
whose  testimony  is  decisive  especially  when  there 
is  contradictory  testimony  on  essential  points.  It 
would  be  necessary  to  have  a  psychological  expert 

attached  to  each  court.     The  medical  expert  could 

/ 

1  Hugo  Miinsterburg :  Op.  cit. 

3  Otto  Lipmann  in  the  Archiv  filr  Kriminal-Anthropologie 
und  Kriminalistik,  July  6,  1905. 
349 


CRIMINAL     PROCEDURE 

as  a  rule  be  given  the  training  which  would  fit  him 
to  perform  these  functions.  In  an  office  adjoining 
the  courtroom  he  could,  whenever  necessary,  per- 
form very  quickly  the  few  tests  which  would  de- 
termine the  psychological  peculiarities  of  a  witness. 

But  the  practical  utility  of  these  data  of  experi- 
mental psychology  does  not  cease  with  an  examina- 
tion of  a  witness  by  a  psychological  expert.  All 
who  take  part  in  conducting  an  examination  or  trial 
such  as  judges,  prosecutors,  counsel  for  the  defense, 
etc.  should  be  acquainted  with  these  data.  They 
would  then  know  that  the  reliability  of  testimony 
is,  as  a  rule,  in  inverse  ratio  to  the  certainty  of  the 
witness  because  the  witness  who  doubts  his  own 
memory  is  most  careful  in  his  affirmations.  They 
would  know  that  the  recognition  of  a  suspected 
person  is  of  value  only  when  made  from  a  group 
of  persons  for  confrontation  by  a  single  individual 
has  too  strong  a  suggestive  influence,  especially 
when  the  press  has  already  published  the  picture 
of  the  person  to  be  recognized.  They  would  know 
that  with  repetition  depositions  become  more  pre- 
cise but  less  exact.  They  would  know  under  what 
circumstances  a  witness  should  be  sent  to  the  psy- 
chological expert  for  a  psychological  examination. 

There  would  be,  also,  one  other  occasion  on 
which  a  witness  could  be  sent  to  the  psychological 
expert.  This  would  be  when  there  was  reason  to 
believe  that  a  witness  was  lying  or  was  not  telling 
as  much  as  he  knew.  By  a  study  of  the  association 
of  ideas  in  the  mind  of  the  witness  much  can  be 
learned  as  to  whether  he  has  been  lying  and  as  to 
350 


EVIDENCE 

the  true  contents  of  his  memory.  "For  instance, 
our  purpose  may  be  to  find  out  whether  a  sus- 
pected person  has  really  participated  in  a  certain 
crime.  He  declares  that  he  is  innocent,  that  he 
was  not  present  when  the  outrage  occurred,  and 
that  he  is  not  even  familiar  with  the  locality.  An 
innocent  man  will  not  object  to  our  proposing  a 
series  of  one  hundred  associations  to  demonstrate 
his  innocence.  A  guilty  man,  of  course,  will  not 
object,  either,  as  a  declination  would  indicate  a 
fear  of  betraying  himself;  he  cannot  refuse,  and 
yet  affirm  his  innocence.  Moreover,  he  will  feel 
sure  that  no  questions  can  bring  out  any  facts 
which  he  wants  to  keep  hidden  m  his  soul;  he  will 
be  on  the  lookout.  As  long  as  nothing  more  is 
demanded  than  that  he  speak  the  first  word  which 
comes  to  his  mind,  when  another  word  is  spoken  to 
him,  there  is  indeed  no  legal  and  no  practical  reason 
for  declining,  as  long  as  innocence  is  professed. 
Such  an  experiment  will  at  once  become  interesting 
in  three  different  directions  as  soon  as  we  mix  into 
our  list  of  one  hundred  words  a  number,  perhaps 
thirty,  which  stand  in  more  or  less  close  connection 
to  the  crime  in  question — words  which  refer  to  the 
details  of  the  locality,  or  to  the  persons  present  at 
the  crime,  or  to  the  probable  motive,  or  to  the  pro- 
fessed alibi,  and  so  on."1  The  three  directions  of 
interest  in  this  experiment  would  be  the  choice  and 
the  constancy  of  the  associations  and  their  invol- 
untary retardation  by  emotional  influence.  These 

*Hugo  Miinsterburg:  in  McClure's  Magazine,  New  York, 
October,  1907. 

351 


CRIMINAL    PROCEDURE 

frequently  throw  a  flood  of  light  upon  the  contents 
of  the  mind.  As  Munsterburg  has  pointed  out  this 
psychological  test  can  take  the  place  of  the  vulgar 
and  frequently  brutal  ordeals  of  the  "third  degree." 
"The  third  degree  may  brutalize  the  mind  and 
force  either  correct  or  falsified  secrets  to  light; 
the  time-measurement  of  associations  is  swifter 
and  cleaner,  more  scientific,  more  humane,  and 
more  reliable  in  bringing  out  the  truth  which 
justice  demands."1 

The  use  of  spontaneous  and  suggested  testimony 
should  be  governed  by  the  psychological  charac- 
teristics of  the  witness.  As  a  general  rule  spon- 
taneous testimony  is  much  more  accurate  than 
suggested  testimony  though  not  a*  full.  For  this 
reason  suggestive  questions  should  usually  be 
avoided  especially  in  the  case  of  a  witness  with 
a  strong  imagination.  But  sometimes  in  the  case 
of  a  laconic  witness  who  has  no  interest  in  the  affair 
it  becomes  necessary  to  ask  suggestive  questions  in 
order  to  draw  out  the  testimony.  These  questions 
should  be  framed  very  carefully  in  order  to  avoid 
influencing  the  character  of  the  testimony.  The 
suggestive  power  of  the  press  should  always  be 
taken  into  account  whenever  it  has  influence  upon 
the  testimony  of  a  witness. 

A  phonograph  may  be  used  at  times  to  record 
testimony  in  order  to  give  the  tone  and  expression 
of  the  witness,  thus  preserving  the  subjective  ele- 
ments of  the  testimony  in  a  way  that  a  written 
record  cannot  do. 

1  Hugo  Munsterburg :  Op.  cit. 
352 


EVIDENCE 

The  above  discussion  shows  the  practical  sig- 
nificance of  experimental  psychology  for  legal  evi- 
dence. So  far  evidence  has  been  judged  by  purely 
empirical  rules  and  principles  which  have  fre- 
quently been  wrong  as  indicated  by  Ferri  in  the 
following  quotation:  "The  child  as  a  witness  is 
the  voice  of  innocence  (when  it  is  too  often  the 
dupe  of  auto-suggestion  or  of  suggestion  from 
another),  or;  the  witness  who  is  frank  and  sure 
in  what  he  says  is  the  most  sincere  (when  more 
probably  he  recites  words  learned  by  heart),  or; 
probability  is  the  surest  criterion  of  truth  (while 
too  often  the  truth  is  very  improbable),  etc."1  The 
principles  of  experimental  psychology  should,  there- 
fore, be  applied  as  soon  and  as  much  as  possible. 
The  determination  of  the  veracity  of  legal  and 
sociological  testimony  would  then  be  in  accordance 
with  these  principles. 

The  theory  of  the  law  so  far  has  been  that  the 
testimony  of  one  witness  is  as  good  in  quality  as 
that  of  another.  But  this  theory  has  never  been 
carried  out  in  practise  because  judges,  whether 
professional  or  lay,  have  always  given  more  weight 
to  the  testimony  of  some  witnesses  than  to  that  of 
others  in  accordance  with  empirical  principles  such 
as  have  been  suggested  above.  This  is  in  ac- 
cordance with  psychology  on  account  of  the  great 
differences  between  witnesses  but  the  discrimina- 
tion between  witnesses  should  be  made  according 
to  scientific  principles.  The  judges  should  there- 
fore be  acquainted  with  these  scientific  principles. 

1  La  justice  penale,  Brussels,  1898,  p.  62. 
23  353 


CRIMINAL     PROCEDURE* 

This  matter  will  be  taken  up  in  the  next  two  chap- 
ters on  the  jury  and  the  judiciary. 

The  results  of  the  physiological  and  psycholog- 
ical examination  should  be  tabulated  and  then  this 
evidence  should  be  analyzed  and  discussed  by  the 
prosecution  and  defense  in  the  course  of  the  con- 
tradictory debate.  Those  engaged  in  this  debate 
should  therefore  have  the  requisite  scientific 
knowledge  in  order  to  enable  them  to  conduct  this 
discussion  intelligently. 

When  the  reforms  indicated  above  have  been 
accomplished  the  scientific  stage  of  evidence  will 
have  arrived.  Evidence  will  then  be  gathered  and 
its  value  estimated  according  to  scientific  principles 
based  on  expert  knowledge  derived  from  experi- 
ments and  from  data  which  have  been  systematic- 
ally collected  and  studied. 


38? 


CHAPTER  X 
THE  JURY 

The  institution  of  the  jury  is  very  ancient. 
Under  the  Mosaic  law  the  elders  performed  this 
judicial  function  In  ancient  Athens  this  func- 
tion was  performed  by  the  Heliastes.  The  Roman 
jury  had  jurisdiction  in  civil  cases  only.  A  list  of 
jurors,  called  "judices  jurati,"  was  prepared  but 
the  parties  could  choose  other  jurors  if  they  wished. 
Among  the  German  tribes  the  citizens  had  the 
power  of  judging.  The  feudal  jury  was  com- 
posed of  the  peers  of  the  accused.  But  the  jury 
which  is  of  practical  importance  for  us,  since  it 
has  existed  down  to  the  present  day,  is  the  one 
which  was  developed  in  England. 

The  origin  of  the  English  jury  is  difficult  to 
determine.  One  theory  is  that  it  came  from  the 
ancient  Scandinavian  jury  by  means  of  the  Danish. 
Another  theory  is  that  it  came  from  the  judicial 
assemblies  of  the  Saxons.  But  wherever  it  may 
have  first  originated  it  was  greatly  influenced  in 
its  development  by  a  form  of  jury  introduced  into 
England  at  the  time  of  the  Norman  conquest  from 
the  procedure  of  inquiry  of  the  ancient  French 
law  known  as  the  "inquisitio."  In  this  procedure 
355 


CRIMINAL     PROCEDURE 

the  judge  summoned  a  certain  number  of  citizens, 
never  definitely  fixed,  worthy  of  confidence  and 
acquainted  with  the  facts  and  after  swearing  them 
in  asked  them  for  their  opinion.  The  "inquisitio" 
was  first  used  for  fiscal  affairs  and  matters  con- 
cerning the  property  of  the  church.  It  was  later 
extended  to  the  affairs  of  widows,  orphans,  and 
feeble  persons  in  general.  Henry  II,  Duke  of 
Normandy,  made  it  an  organic  part  of  the  Norman 
law  so  that  under  certain  conditions  it  could  be 
demanded  in  any  case.  When  Henry  went  to  the 
throne  of  England  as  its  conqueror  this  method 
of  proof  was  introduced  as  the  "recognitio 
d'assisa."  It  extended  at  first  only  to  questions 
of  property  (magna  assisa)  and  of  possession 
(parva  assisa). 

At  first  the  jurors  in  the  English  jury  were  only 
witnesses  whose  duty  it  was  to  testify  from  per- 
sonal knowledge  and  sometimes  to  offer  an  opin- 
ion. Later  they  acquired  the  power  to  judge  as 
well  as  to  testify  and  then  became  judges  and  no 
longer  witnesses. 

In  1166  appeared  the  jury  of  denunciation  which 
later  became  a  jury  of  accusation,  now  known  as 
the  grand  jury.  The  coroner's  jury  was  instituted 
to  investigate  violent  deaths  and  to  make  accusa- 
tions when  it  saw  fit.  Up  to  the  reign  of  Edward 
III,  the  same  persons  could  be  the  jury  of  accusa- 
tion and  that  of  judgment  but  since  then  this  has 
not  been  possible.1 

1  Cf.  Ludovic  Nagels  and  George  Meyers :  Les  his  du 
jury,  Brussels,  1901. 

356 


THE    JURY 

The  uncertainty  of  our  knowledge  concerning 
the  early  English  jury  is  indicated  in  the  following 
quotation :  "Assizes,  in  our  sense  of  the  word,  are 
the  direct  descendants  of  the  itinera,  or  eyres, 
which  were  first  reduced  to  a  system,  by  no  means 
unlike  our  circuits,  in  the  time  of  Henry  II.  The 
business  of  these  eyres  was  to  hold  inquests  in 
every  part  of  the  country  as  to  crimes,  as  to  civil. 
suits,  and  as  to  a  vast  variety  of  matters  connected 
with  revenue,  feudal  services,  etc.,  specified  in  the 
commissions  under  which  the  justices  sat,  and 
varying  from  time  to  time,  according  to  circum- 
stances. No  perfectly  distinct  account  can  be 
given  of  the  proceedings  before  a  justice  in  eyre 
as  they  originally  were,  but  it  is  clear  that  the  first 
step  was  to  call  together  the  principal  persons  of 
the  county  and  to  require  them  to  report  upon  the 
crimes  which  had  been  committed  in  the  county 
since  their  last  appearance."1 

But  we  cannot  trace  in  detail  the  historical  de- 
velopment of  the  jury  though  it  was  necessary  to 
give  some  indication  of  its  origin  for  the  light  it 
throws  upon  the  underlying  theory  of  the  jury. 
From  England  the  jury  went  to  America  where  it 
is  used  among  Anglo-Saxon  peoples  almost  if  not 
quite  as  extensively  as  in  England.  The  English 
jury  did  not  go  on  to  the  Continent  until  the  time 
of  the  French  Revolution.  The  use  of  torture  as  a 
mode  of  proof  was  then  abolished  and  the  introduc- 
tion of  the  jury  was  in  harmony  with  the  spirit  of 

1 J.  F.  Stephen :  A  General  View  of  the  Criminal  Law  of 
England,  London,  1890,  p.   15. 
357 


,        CRIMINAL     PROCEDURE 

the  times.  "At  the  end  of  the  eighteenth  century, 
when  the  thought  of  scientists  and  of  jurists  was 
tending  towards  the  establishment  of  a  class  of  in- 
dependent magistrates,  the  French  Revolution,  full 
of  mistrust  with  respect  to  all  aristocracy,  all  social 
caste,  of  enthusiasm  for  the  omnipotence  and 
omniscience  of  the  people,  opposed  this  tendency 
and  instituted  the  jury."1  From  France  the  jury 
spread  to  most  of  the  countries  of  Europe. 

The  jury  is  based  upon  certain  principles  which 
have  been  gradually  formulated  in  the  course  of 
its  history  and  which  are  always  used  as  argu- 
ments in  its  favor.  The  jury  is  regarded  as  the 
"bulwark"  or  "advance  guard"  of  liberty  because 
it  is  supposed  to  protect  the  rights  and  liberties  of 
the  people  against  encroachments  by  the  central 
power.  It  represents  public  opinion  and  keeps  the 
judge  and  justice  in  touch  with  the  public  con- 
science. It  is  a  school  of  citizenship.  It  is  en- 
tirely independent  and  therefore  irresponsible.  Its 
moral  judgment  serves  as  a  corrective  for  the 
laws.  Its  deep  conviction  and  conscience  fresh  to 
all  judicial  matters  furnish  the  best  means  of  judg- 
ing evidence.  We  shall  not  stop  to  comment  on 
these  principles  now  but  will  return  to  them  after 
studying  the  workings  of  the  jury  system. 

As  has  already  been  indicated  there  are  two 
kinds  of  juries,  the  jury  of  accusation  or  grand 
jury,  and  the  jury  of  judgment  or  petit  jury.  The 
second  is  by  far  the  most  important  and  we  shall 
now  devote  considerable  attention  to  its  study. 

1  E.  Ferri:  La  sodologie  criminelle,  Paris,  1905,  p.  533. 
358 


THE    JURY 

We  must  first  study  the  personnel  of  the  petit 
jury  and  the  characteristics  of  the  individual  juror 
in  order  to  understand  its  workings.  The  machin- 
ery by  which  jurors  are  chosen  varies  more  or 
less  in  different  places.  It  is,  however,  almost  if 
not  quite  the  universal  custom  to  exclude  manual 
and  day  laborers.  Many  professional  men,  also, 
such  as  doctors,  clergymen,  lawyers,  etc.,  are  ex- 
cluded as  well  as  many  others  in  the  upper  classes. 
Thus  the  tendency  is  to  exclude  the  lowest  and 
upper  classes.  It  was  found  that  out  of  fifteen 
hundred  jurors  of  the  Department  of  the  Seine  in 
which  Paris  is  situated,  more  than  half  were  small 
merchants  so  that  at  least  seven  members  of  each 
jury  are  pretty  certain  to  be  merchants.1  In  the 
Department  of  the  Sarthe  in  France,  which  is  an 
agricultural  section,  jurors  are  usually  small  farm- 
ers.2 The  standard  of  intelligence  of  the  jury  is, 
therefore,  at  best  mediocre.  The  number  of  jurors 
in  the  petit  jury  is  invariably  twelve. 

Taking  up  now  the  characteristics  of  the  indi- 
vidual juror  we  must  note  first  the  difficulty  with 
which  most  jurors  perform  this  service.  It  is  not 
easy  for  a  merchant  or  a  farmer  to  leave  his  work, 
the  fees  not  being  sufficient  usually  to  pay  for  the 
loss  of  time.  This  is  why  an  effort  is  made  by  so 
many  jurors  to  be  excused  at  the  beginning  of 
their  term  of  service.  Sometimes  a  juror  will  in- 
duce a  lawyer  to  challenge  him  in  order  to  be  re- 
lieved from  serving  on  a  jury.  On  the  other  hand 

1Jean  Cruppi :  La  cour  d'assises,  Paris,  1898. 
2  Maurice    Ajam:    in    the   Archives    d'anthropologie    crim- 
inelle,  Lyons,    1899. 

359 


CRIMINAL     PROCEDURE 

there  are  a  certain  number  of  jurors  who  are  anx- 
ious to  serve,  some  of  them  in  order  to  get  a  repu- 
tation in  their  neighborhood,  others  to  earn  the 
fees.  These  last  belong  usually  to  a  very  low  type 
of  juror. 

The  jurors  who  are  forced  to  serve  are  usually 
inspired  by  a  very  sincere  desire  to  serve  well  if 
not  disturbed  by  external  influences  which  will  be 
indicated  later.  A  juror  usually  feels  the  respon- 
sibility of  his  position  and  is  desirous  of  filling  it 
well.  When  he  sees  the  accused  before  him  a 
humanitarian  feeling  leads  him  to  want  to  do 
justice. 

But  jurors  are  greatly  hampered  by  their 
ignorance.  They  are  ignorant,  as  a  rule,  of  legal 
procedure  and  documents.  "The  largest  part  of  the 
injustices  committed  by  the  jury,  comes  in  reality 
from  its  ignorance,  either  on  account  of  its  in- 
capacity to  grasp  the  meaning  of  several  juridical 
terms,  and  to  understand  the  true  significance  and 
the  connection  which  binds  together  the  questions, 
often  very  numerous,  which  are  submitted  to  it;  ... 
or  on  account  of  the  lack  of  aptitude  or  of  ex- 
perience necessary  for  the  critical  study  of  evidence, 
of  proofs  and  of  arguments  for  and  against,  in  trials 
where  guilt  is  not  evident  at  the  first  glance."1  Ex- 
perience is  necessary  to  be  able  to  separate  sig- 
nificant from  insignificant  details  in  the  evidence 
and  this  experience  most  jurors  lack.  Further- 
more, jurors  know  little  or  nothing  about  crime 
and  criminals.  They  have  not  even  the  empirical 

1  R.  Garofalo:  La  criminologie,  Paris,  1905,  pp.  388-389. 
360 


THE    JURY 

knowledge  that  judges  and  lawyers  acquire,  to  say 
nothing  of  a  knowledge  of  criminal  anthropology 
and  sociology. 

This  ignorance  will  usually  disquiet  a  juror  and 
he  will  go  in  search  of  information.  But  very  lit- 
tle information  is  furnished.  In  England  books 
of  instructions  to  jurors  are  published  which  a 
juror  may  read  and  in  France  a  vague  printed 
statement  is  given  to  jurors  which  tells  very  little. 
Consequently  most  of  the  information  of  a  juror 
is  of  a  very  haphazard  sort,  much  of  it  sometimes 
coming  from  a  court  attendant.  This  ignorance 
tends  to  develop  a  suspicious  attitude  on  the  part 
of  the  juror  towards  all  concerned  in  the  trial, 
towards  the  judge  whose  exalted  position  puts  a 
barrier  between  the  juror  who  is  a  judge  of  cir- 
cumstance and  the  judge  of  profession,  towards 
the  lawyers  on  account  of  their  partizan  position, 
etc. 

Many  influences  act  upon  a  juror  in  the  course 
of  a  trial.  Perhaps  the  principal  influence  is  that 
exerted  by  the  lawyers.  On  account  of  the  ignor- 
ance of  jurors  a  skillful  lawyer  can  frequently  de- 
ceive them  as  to  the  true  significance  of  evidence. 
Consequently  cases  are  frequently  determined  by 
the  respective  ability  of  opposing  lawyers  to  ac- 
complish this  and  not  upon  the  merits  of  the  case. 
An  American  judge  has  described  this  influence 
of  the  lawyers  over  the  jury  in  the  following 
words:  "It  seems  strange  that  while  this  extreme 
jealousy  exists  on  the  part  of  courts  and  counsel 
as  to  protecting  juries  against  every  improper 
361 


CRIMINAL     PROCEDURE 

influence,  so  great  latitude  should  be  given  to  advo- 
cates in  summing  up.  Fiery  and  eloquent  appeals, 
logic,  rhetoric,  personal  influence,  the  advocate's 
own  statement  of  the  facts  in  the  case,  his  special 
version  of  them,  and  denunciation  of  the  jurors 
in  case  they  do  not  find  in  his  favor,  are  all  per- 
mitted. It  is  not  by  any  means  the  most  learned, 
sound,  and  honest  lawyer,  or  the  one  that  has  the 
best  case,  that  usually  succeeds  with  a  jury;  it  is 
he,  rather,  who  has  a  profound  knowledge  of  hu- 
man nature,  and  who  can  tell  what  he  does  not 
know  as  well  as  what  he  does  know,  in  a  pleasing, 
ready,  and  insinuating  manner.  In  many  cases 
advocates  have  at  one  time  been  for  the  plaintiff 
in  one  cause,  and  a  few  days  later  for  the  defend- 
ant in  another,  with  precisely  similar  facts  and 
principles  involved;  and  yet  have  won  both  cases, 
sometimes  before  the  same  jury.  Frequently  a 
client's  cause  is  virtually  won  the  moment  that 
certain  counsel  accept  the  retaining  fee.  Herein 
lies  one  of  the  greatest  dangers  of  the  system. 
The  able  advocate  has  greater  influence  than  have 
the  merits  of  the  case."1  On  account  of  this  in- 
fluence which  lawyers  have  over  jurors  they  will 
indulge  in  a  great  deal  of  oratory  and  claptrap  in 
every  trial  in  which  there  is  a  jury,  thus  distinctly 
lowering  the  intellectual  standard  of  the  trial. 

The  judge  has  considerable  influence  over  the 
jurors.  In  England  the  jury  has  great  confidence 
in  the  judge  and  the  summing  up  of  the  judge  is 

1E.  A.  Thomas:  in  the  Forum,  New  York,  March,  1887, 
p.  107. 

362 


THE   JURY 

likely  to  influence  the  jury  greatly.  In  France 
and  elsewhere  on  the  Continent  this  summing  up 
has  been  abolished  because  it  was  believed  that  it 
influenced  the  jury  too  much.  This  was  probably 
due  to  the  tendency  of  the  Continental  judge  to 
be  partial  to  the  prosecution.  But  the  Continental 
judge  is  sometimes  able  to  influence  the  jury  in 
another  way.  In  Continental  procedure  the  jury 
may  call  the  presiding  judge  in  to  its  council 
chamber  to  consult  with  him  and  ask  his  advice. 
Under  these  circumstances  the  judge  is  frequently 
able,  if  he  wishes,  to  influence  the  jury  considerably. 
This  is  manifestly  wrong  and  if  the  judge  is  to 
meet  the  jury  at  all  it  should  be  in  the  presence  of 
the  plaintiff,  defendant  and  counsel  for  the  de- 
fendant. The  jury  is  influenced  by  its  general  im- 
pression of  the  judge.  If  it  is  pleased  with  the 
judge  it  will  usually  do  what  it  thinks  will  please 
him.  But  if  it  loses  confidence  in  the  judge  on 
account  of  some  mistake  made  by  him  or  if  dis- 
pleased with  his  personality  it  will  oppose  him  as 
much  as  possible  in  order  to  spite  him. 

The  jurors,  and  therefore  the  jury,  may  be 
greatly  influenced  by  the  appearance  and  person- 
ality of  the  defendant  or  plaintiff.  For  example, 
in  the  case  of  a  crime  of  passion  the  jury  may  be 
strongly  moved  by  the  personality  of  the  defend- 
ant. On  the  other  hand  in  the  case  of  a  crime 
against  the  person  the  sympathies  of  the  jury  may 
go  out  very  strongly  to  the  victim  of  the  crime  on 
account  of  the  suffering  and  injury  which  his  or 
her  appearance  manifests.  It  is  this  influence  of 
363 


CRIMINAL     PROCEDURE 

the  personality  of  the  accused  over  the  jury  which 
has  led  the  jury  to  individualize  punishment 
though,  as  we  have  seen,  this  individualization  has 
not  always  been  on  a  rational  basis,  as,  for  ex- 
ample, when  the  jury  is  influenced  by  the  social 
prestige  of  the  plaintiff  or  of  the  defendant. 

The  jury  is  in  general  very  impressionable  and 
frequently  the  strongest  impression  it  receives  will 
govern  its  action  rather  than  a  careful  weighing 
of  the  facts.  This  is  illustrated  by  the  power  of 
the  "incident"  which  is  a  circumstance  only  rela- 
tively important  but  which  suddenly  assumes  very 
great  or  even  absolute  importance  in  the  minds  of 
the  jurors  and  decides  a  case.1  This  "incident"  is 
usually  brought  about  by  a  lawyer  who  suddenly 
presents  this  circumstance  with  a  great  deal  of 
force  under  dramatic  circumstances  thus  making 
a  great  impression  upon  the  minds  of  the  jurors. 
The  more  the  contradictory  debate  is  logical  and 
well  regulated  the  more  rare  is  such  an  incident. 

The  press  and  the  public  sentiment  of  the  mo- 
ment have  much  influence  over  the  jury.  Local 
prejudices  influence  the  jury  greatly  in  its  decisions, 
so  that  in  a  certain  community  the  jury  will  al- 
ways be  more  than  usually  severe  upon  a  certain 
crime  because  it  is  peculiarly  obnoxious  to  that 
community.  Towards  other  crimes  it  may  be  un- 
usually lenient. 

The  trade  or  profession  of  a  juror  is  likely  to 
influence  him  in  his  decisions  by  giving  him  a  pe- 
culiar point  of  view.  The  juror  may  have  heard 

1  Cf.  Jean  Cruppi :  Op.  cit. 

364 


THE    JURY 

of  a  theory  of  criminality  which  will  influence  him 
in  an  unthinking  way.  Thus  he  may  regard  the 
criminal  as  the  result  of  heredity,  as  the  fault  of 
society,  or  as  dangerous  to  society  and  entirely 
responsible,  and  be  guided  entirely  in  his  decision 
by  a  unilateral  theory. 

A  fundamental  characteristic  of  the  juror  is  his 
lack  of  a  power  of  attention.  Not  being  used 
to  follow  the  workings  of  a  court  many  jurors 
after  the  first  few  minutes  fall  into  a  semi-con- 
scious dreamlike  state  in  which  they  hear  very  lit- 
tle of  the  evidence  or  arguments.  Consequently 
the  important  points  do  not  become  impressed 
upon  their  minds  as  they  should  be,  especially  in 
a  long  trial.  This  power  of  attention  can  be  de- 
veloped only  through  training  and  habit.  It  is  a 
noticeable  fact  that  old  judges  have  a  fresher  at- 
tention usually  at  the  end  of  a  trial  than  young 
judges,  this  being  due  to  their  longer  experience. 

Having  discussed  some  of  the  characteristics  of 
the  individual  juror  we  may  now  turn  our  atten- 
tion to  the  functioning  of  the  jury.  The  method 
of  selecting  a  jury  is  entirely  mechanical,  the  jur- 
ors being  chosen  by  lot  from  the  list  of  jurors. 
No  attempt  is  made  to  make  a  jury  representative 
of  different  classes  or  professions  so  that  a  jury 
is  frequently  made  up  entirely  of  merchants  or  of 
farmers.  The  designation  of  the  foreman  is  usu- 
ally automatic,  the  first  juror  chosen  being  the 
foreman.  But  in  Germany  the  foreman  is  elected 
by  the  jury  when  it  begins  its  deliberations.  In 
England  the  jurors  take  notes  quite  freely  and  ask 
365 


CRIMINAL    PROCEDURE 

questions  quite  frequently  in  the  course  of  the 
trial.  Elsewhere  this  is  not  so  common. 

Cases  may  be  classified  according  to  their  rela- 
tive influence  on  the  jury  into  those  in  which  the 
crime  has  the  most  influence  and  those  in  which 
the  accused  has  the  most  influence.  An  illustra- 
tion of  the  first  class  would  be  a  larceny  or  forgery 
coming  before  a  jury  made  up  largely  or  wholly 
of  merchants  who  would  be  very  severe  on  this 
kind  of  a  crime.  An  example  of  the  second  class 
would  be  a  criminal  of  passion  whose  personality 
would  appeal  strongly  to  the  jury.  In  such  a  case 
the  jury  would  tend  to  individualize  and  it  was  to 
permit  of  this,  as  we  have  seen,  that  the  expedient 
of  extenuating  circumstances  was  introduced  into 
Continental  procedure. 

The  contradictory  debate  varies  in  different 
countries  according  to  the  nature  of  the  people. 
In  France  the  tendency  is  to  appeal  to  the  passions, 
in  England  the  tendency  is  towards  excessive 
casuistry,  but  everywhere  an  oratorical  character 
is  given  to  the  debate  and  a  great  deal  of  senti- 
mental claptrap  is  introduced  on  account  of  the 
predominance  of  sentiment  over  reason  in  the  jury. 
"This  predominance  of  sentiment  over  reason, 
which  is  the  fundamental  note  of  the  jury,  mani- 
fests itself  first  of  all  and  very  clearly  in  the  di- 
rection taken  by  the  public  debates.  In  them 
there  is  no  need  for  profound  philosophic  or 
juridical  studies;  to  what  would  they  be  applied? 
As  for  the  criticism  of  evidence  and  as  for  logic, 
these  can  be  dispensed  with;  what  is  extremely, 
366 


THE    JURY 

solely  necessary  is  oratorical  charm."1  The  re- 
sult is  that  the  debate  tends  to  confuse  the  jury  as 
to  the  main  points  at  issue  by  covering  them  up. 
But  it  keeps  before  the  mind  of  the  jury  the  pun- 
ishment which,  since  it  is  a  question  of  law  and 
not  of  fact,  is  not  supposed  to  be  considered  by 
the  jury.  Lawyers  are  constantly  drawing  the 
attention  of  the  jurors  to  the  penal  consequences 
of  their  verdict  and  their  humanitarian  instincts 
force  them  to  think  of  it.  The  expedient  of  ex- 
tenuating circumstances  is  a  recognition  of  this 
fact. 

After  the  debate  comes  the  summing  up  or 
charge  to  the  jury  of  the  judge  in  which  he  states 
the  juridical  aspects  of  the  questions  at  stake  and 
reviews  the  main  features  of  the  evidence.  A 
sober  presentation  of  these  facts  by  the  judge  has 
as  a  rule  a  beneficial  effect  on  the  jury  though,  as 
we  have  already  noted,  this  summing  up  has  been 
abolished  in  France  and  elsewhere  on  the  Con- 
tinent, on  account  of  the  danger  of  the  judge  being 
partial  to  the  prosecution. 

After  the  charge  from  the  judge  the  jury  retires 
to  deliberate  unless  they  are  able  to  make  a  deci- 
sion immediately.  The  tendency  is  for  the  jury 
to  break  up  first  into  knots  of  two  or  three,  dis- 
cussing the  question  rather  incoherently.  Then 
as  the  most  pronounced  opinions  begin  to  appear 
the  discussion  becomes  more  general  with  the  ex- 
ponents of  these  opinions  dominating,  the  others 
remaining  more  or  less  silent.  Very  frequently 

1 E.  Ferri :  Op.  cit.  p.  544. 

367 


in  accordance  with  the  psychology  of  crowds  a 
single  person  dominates  all  the  others.1  This 
leader  is  not  necessarily  the  most  intelligent  mem- 
ber of  the  jury,  but  has  the  most  stubborn  will  by 
means  of  which  he  overbears  the  convictions  of  the 
others.  He  is  assisted  in  this  by  the  necessity  of 
coming  to  a  decision,  especially  in  England  and 
America  where  unanimity  is  required.  On  the 
Continent  only  a  majority  is  required  which  per- 
mits of  differences  of  opinion.  During  their  de- 
liberations the  jury  may  be  influenced  a  little  by 
the  judge,  especially  on  the  Continent  where  he 
meets  them  alone.  They  are  usually  kept  care- 
fully secluded  from  the  public  during  their  delib- 
erations though  in  some  European  countries  they 
are  permitted  to  go  out  in  the  intervals  of  their 
deliberations  which  is  manifestly  wrong  since  it 
results  in  bribery  and  other  forms  of  corruption. 
The  decision  of  a  jury  is  final  since  there  is  no  way 
of  appealing  from  it. 

Let  us  now  consider  the  faults  and  weaknesses 
of  the  jury,  some  of  which  have  already  been  in- 
dicated. In  the  first  place  it  has  local  faults,  as, 
for  example,  in  Southern  Italy  it  is  susceptible  to 
bribery,  in  France  it  is  influenced  by  political  feel- 
ing, etc.  It  tends  in  general  to  be  weak  where 
frequency  of  crime  demands  strength  on  account 
of  the  leniency  of  jurors  who  are  likely  to  commit 
the  same  crimes.  Thus  the  Italian  jury  is  lenient 

1Cf.  G.  Le  Bon:  Psychohgie  des  foules,  Paris,  1895,  Book 
III,  Chap.  3,  and  Maurice  Ajam,  Op.  cil. 
368 


THE    JURY 

towards  the  use  of  knives,  the  Corsican  jury  to- 
wards the  use  of  firearms,  etc. 

There  is  almost  no  guarantee  of  the  incorrupti- 
bility of  the  jury  since  the  giving  of  a  bribe,  etc., 
could  be  detected  with  great  difficulty.  The  juror 
can  accept  a  bribe  with  little  danger  since  he  is  very 
soon  to  return  to  private  life  and  has  no  public 
reputation  as  a  judge  to  sustain. 

The  jury  is  not  always  a  safeguard  of  the  peo- 
ple's rights  and  liberties  against  the  encroachment 
of  a  despot  or  other  central  power.  On  the  con- 
trary history  shows  us  that  very  frequently  on  ac- 
count of  corruption  and  intimidation  the  jury  is 
weakest  when  the  central  power  is  most  tyrannical. 
"This  occasion  may  be  taken,  for  want  of  a  better, 
for  adverting  to  another  popular  misconception  as 
to  trial  by  jury,  namely,  that  it  has  always  been  the 
Palladium  of  our  liberties,  etc.,  etc.,  and  a  defense 
against  unjust  prosecution,  or  persecution  by  the 
Crown,  or  the  higher  powers.  The  case  has  not 
only  not  always  been  so,  but  very  often  exactly  the 
opposite,  since  in  former  times  juries  were  con- 
stantly forced  to  act  as  cat's-paws  to  tyranny,  and 
thus  serve  its  purposes  by  enabling  it  to  evade  the 
odium  which  would  have  attached  to  mere  bare- 
faced oppression,  too  insolent  to  care  about  dis- 
guising or  masking  its  own  direct  and  independent 
action.  Jeffreys  might  hardly,  perhaps,  have 
rioted  through  his  celebrated  campaign  with  such 
uninterrupted  success,  without  the  instrumentality 
of  terrified  juries,  since  the  spectacle  of  a  piti- 
less fiend,  sending  people  wholesale  to  torture  and 
24  369 


CRIMINAL     PROCEDURE) 

unjust  execution,  and  doing  this  unsupported  by 
any  pretence,  even  in  form,  of  acquiescence  on  the 
part  of  the  country,  might  have  proved  too  much 
for  human  endurance."1  "The  records  of  the 
State  trials  show  how  difficult  it  must  often  have 
been  for  juries  to  hold  their  own  against  the  vio- 
lence of  the  Bench.  In  Sir  Nicholas  Throck- 
morton's  case,  for  example,  which  was  tried  in 
1554,  the  jury,  on  finding  a  verdict  of  acquittal 
were  sent  to  prison.  Four  of  the  number  were 
soon  afterwards  discharged  on  humbly  admitting 
that  they  had  done  wrong,  but  the  remaining  eight 
were  brought  before  the  Star  Chamber,  and  most 
severely  dealt  with.  Three  were  adjudged  to  pay 
£209  each,  and  the  rest  £200  each."2 

Stephen,  though  an  advocate  of  the  jury  system, 
has  admitted  its  weakness  in  the  face  of  tyrannical 
power.  "They  (juries)  are  also  capable  of  being 
intimidated,  as  the  experience  of  Ireland  has  abun- 
dantly shown.  Intimidation  has  never  been  syste- 
matically practiced  in  England  in  modern  times, 
but  I  believe  it  would  be  just  as  easy  and  just  as 
effective  here  as  it  has  been  shown  to  be  in  Ireland. 
Under  the  Plantagenets,  and  down  to  the  estab- 
lishment of  the  court  of  Star  Chamber,  trial  by 
jury  was  so  weak  in  England  as  to  cause  -some- 
thing like  a  general  paralysis  of  the  administfation 
of  justice.  Under  Charles  II  it  was  a  blind  and 
cruel  system.  During  part  of  the  reign  of  George 
III  it  was,  to  say  the  least,  quite  as  severe  as  the 

1 T.  W.  Erie :  The  Jury  Laws  and  their  Amendment,  Lon- 
don, 1882,  p.  121. 

aT.  W.  Erie:    Op.  cit.  p.  123. 
370 


THE    JURY 

severest  judge  without  a  jury  could  ever  have 
been.  The  Revolutionary  tribunal  during  the 
Reign  of  Terror  tried  by  a  jury."1  Thus  we  see 
that  the  jury  has  failed  to  resist  every  kind  of 
tyranny  even  that  of  the  people.  "In  England  in 
the  sixteenth  and  seventeenth  centuries,  in  France 
during  the  Revolution  and  the  Restoration,  the 
jury  has  nearly  always  been  the  faithful  servant 
of  the  most  powerful ;  it  has  succumbed  to  all 
kinds  of  tyrannies,  to  that  of  the  throne  as  well  as 
that  of  the  populace."2 

The  power  of  the  jury  to  correct  the  law  is  in 
many  ways  a  dangerous  one.  As  we  have  already 
noted  one  of  the  underlying  principles  of  the  jury 
is  that  its  moral  judgment  acts  as  a  corrective  of 
the  law.  And  there  is  no  doubt  that  the  jury  has 
at  times  served  a  useful  purpose  by  relieving  the 
rigidity  or  arbitrariness  of  a  law  in  its  application, 
or  by  condemning  a  law  by  refusing  to  enforce  it. 
An  example  of  this  is  the  way  in  which  the  jury 
has  stimulated  the  individualization  of  punish- 
ment. But  the  question  may  be  raised  whether 
the  reform  of  the  law  should  belong  to  a  judicial 
institution  since  this  results  in  a  confusion  of 
legislative  and  judicial  functions.  By  refusing  to 
enforce  a  law  the  jury  makes  it  a  dead  letter.  This 
power  of  the  jury  tends  to  discourage  the  zeal  of 
promoters  of  legislative  reform.  Furthermore  it  en- 
courages the  transgression  of  the  laws  by  lessening 

1 J.  F.  Stephen :  A  History  of  the  Criminal  Law  of  England, 
London,   1883,   Vol.  I,  p.  569. 
8  R.  Garofalo :  Op.  cit.  p.  396. 

371 


CRIMINAL     PROCEDURE 

their  value  in  the  public  esteem.  "The  citizen,  who, 
in  his  functions  as  juror  or  in  seeing  the  jury 
function,  understands  that  one  can  go  to  the  point 
of  putting  the  law  aside,  loses  more  and  more  the 
feeling  of  the  intangibility  of  social  prescriptions. 
It  is  a  double-edged  weapon.  'It  is  better  to  put 
the  remedy  in  the  law  than  in  the  subversion  of  the 
law'."1  In  a  day  when  the  people  had  little  or  no 
legislative  power  it  may  have  been  justifiable  to 
give  the  jury  legislative  functions.  But  this  is  no 
longer  necessary  under  the  present  democratic 
regime. 

The  present  distinction  between  law  and  fact 
causes  incoherence  of  action  on  the  part  of  the 
jury.  It  is  supposed  to  be  a  judge  only  of  facts. 
But,  as  we  have  seen,  it  cannot  avoid  being  in- 
fluenced by  the  personality -of  the  accused  and  con- 
sidering the  penal  consequences  of  its  verdict 
which  is  a  question  of  law.  As  its  knowledge  of 
the  law  is  very  vague  it  cannot  give  an  exact  ex- 
pression of  its  opinion  in  its  verdict.  Thus  a  jury 
will  sometimes  acquit  in  a  case  where  it  believes 
that  the  accused  is  guilty  but  it  fears  that  the  penal 
consequences  of  a  verdict  of  guilty  will  be  heavier 
than  the  accused  deserves. 

The  jury  tends  in  general,  as  we  have  seen,  to 
be  governed  by  isolated  facts  selected  and  empha- 
sized by  the  sentiments  rather  than  by  logic  and 
reason. 

Let  us  now  consider  what  measures  can  be  taken 
to  correct  some  if  not  all  of  these  faults  of  the  jury 

1 E.  Ferri :  Op.  cit.  p.  538. 

372 


THE    JURY 

and  to  strengthen  its  weak  points.  The  reform 
which  is,  perhaps,  most  frequently  advocated  is  the 
raising  of  the  standard  of  intelligence  of  the  jury. 
This  would,  probably,  increase  the  independence 
and  impartiality  of  the  jury,  for  a  more  intelligent 
group  of  men  would  be  less  likely  to  be  influenced 
by  local  or  other  prejudices  or  to  be  intimidated 
or  corrupted.  But  there  are  psychological  reasons 
for  believing  that  the  increase  in  the  intelligence 
of  the  action  of  the  jury  as  a  whole  would  not  equal 
the  increase  in  the  average  intelligence  of  the  mem- 
bers of  a  jury.  It  is  the  tendency  of  every  group 
to  act  less  wisely  than  the  average  member  of  the 
group.  "The  union  of  a  certain  number  of  per- 
sons in  general  intelligent  is  not  a  pledge  of  the 
eventual  capacity  which  will  result  from  it  for  the 
whole,  because,  in  the  psychological  domain,  a 
union  of  individuals  never  gives,  as  it  would  seem 
must  take  place,  a  total  equal  to  the  value  of  each 
of  them.  In  grouping  intelligent  individuals  it  is 
very  possible  to  form  an  assembly  which  is  not  in- 
telligent, just  as  in  chemistry  the  union  of  two 
gases  can  give  a  liquid  body.  The  deleterious 
elements,  which  in  isolated  individuals  remain  hid-  | 
den,  are  united  with  each  other  and  as  a  conse- 
quence of  psychological  affinity  and  fermentation, 
take  the  upper  hand.  The  ancients  had  a  present- 
iment of  this  fact  when  they  said:  Senatores  boni 
viri,  senatus  autem  mala  bestia  (the  senators  are 
virtuous  men,  the  senate  is  a  mischievous  beast)  ; 
the  people  feels  this  when  it  says  of  certain  social 
groups  that  their  members  taken  one  by  one  are 
373 


CRIMINAL     PROCEDURE} 

good,  but  that  taken  together  they  are  rascals."1 
It  is  also  true  that  a  group  or  crowd  will  some- 
times act  with  better  motives  than  those  of  its 
individual  members  since  a  generous  impulse  will 
sometimes  carry  away  a  group  where  it  will  not 
influence  individuals.  But  it  is  doubtful  if  a 
group  ever  acts  more  wisely  than  the  average  in- 
telligence of  its  members.  Especially  true  is  this 
of  a  heterogeneous  group  such  as  a  jury  whose 
members  are  strangers  to  each  other  and  differ 
more  or  less  from  each  other  in  ideas,  habits,  etc. 
It  has  been  noticed  that  jurors  do  better  work  after 
getting  acquainted  with  each  other.  For  these 
reasons  it  is  doubtful  if  an  increase  in  the  intel- 
ligence of  the  jurors  would  make  much  difference 
in  the  effectiveness  of  the  jury.  Unless  a  group 
is  judging  a  question  about  which  its  individual 
members  have  expert  knowledge  its  judgment  is 
not  worth  much,  however  intelligent  the  members 
may  be. 

When  the  jury  elects  its  own  foreman,  as  is  done 
in  Germany,  the  foreman  is  more  likely  to  be  fitted 
for  his  duties  and  will  do  more  to  make  the  dis- 
cussion coherent  and  logical.  It  has  been  sug- 
gested that  a  lawyer  who  is  not  connected  with  the 
case  but  who  may  be  challenged  by  either  side  act 
as  the  head  of  the  jury.2  Under  such  guidance 
the  jury  could  probably  do  better  work. 

It  helps  the  jury  to  have  a  list  of  questions  which 
are  to  be  decided  by  it  prepared  by  the  judge  as  is 

*E.  Ferri:    Op.  cit.  pp.  541-542. 

*  R.  de  la  Grasserie :  in  the  Revue  Internationale  de 
sociologie,  Paris,  1897. 

374 


THE    JURY 

done  in  Germany.  As  a  matter  of  fact  this  is  done 
for  it  verbally  in  the  summing  up  by  English  and 
American  judges. 

If  a  jury  were  required  to  give  a  motive  or 
reason  for  every  decision  its  discussion  would 
probably  be  more  logical.  This,  however,  may  be 
objected  to  on  the  ground  that  it  is  a  violation  of 
the  independence  of  the  jury  and  might  furnish 
grounds  for  appeal. 

It  is  evident  that  it  is  impossible  to  prevent  the 
jury  from  considering  the  penal  consequences  of 
its  verdict  and  thereby  judging  a  question  of  law 
as  well  as  of  fact.  This  has  resulted  in  a  tendency 
towards  the  suppression  of  this  distinction  between 
fact  and  law.  As  a  matter  of  fact  the  crime,  which 
is  the  only  thing  the  jury  is  supposed  to  judge,  is 
a  juridical  fact  and,  as  we  have  seen,  it  is  impossi- 
ble to  separate  the  crime  from  the  punishment  when 
judging.  As  Ferri  has  said,  "law  and  fact,  in  a 
penal  process,  are  inseparable  like  the  right  side 
and  wrong  side  of  the  same  piece  of  cloth,  even 
when  one  is  careful,  as  in  the  different  legislative 
modifications  effected  in  Italy,  to  avoid  as  much 
as  possible  juridical  terms."1  Various  sugges- 
tions have  been  made  as  to  how  the  functions  of 
the  jury  can  be  broadened  and  how  it  can  be  given 
the  power  of  deciding  upon  the  penalty  as  well  as 
upon  the  question  of  guilt.  In  Scotland  still  exists 
the  verdict  of  "not  proven"  which  was  known  in 
the  Roman  law  as  non  liquet.  It  has  been  sug- 
gested that  this  be  restored  because  it  would  give 

1  Op.  dt.  p.  543. 

375 


CRIMINAL     PROCEDURE 

the  jury  a  larger  choice  in  deciding.  But  this 
verdict  has  little  practical  value  since  the  accused 
goes  free  just  as  if  the  verdict  were  "not  guilty." 
It  is  also  sometimes  detrimental  to  the  defendant 
who  is  innocent  and  yet  upon  whose  reputation 
there  is  left  the  stain  of  suspicion. 

In  1894  was  presented  in  the  French  Parliament 
a  law  called  the  "Martineau  project"  which  pro- 
posed eight  degrees  of  guilt  to  each  of  which  cor- 
responded certain  penalties,  such  as  death,  hard 
labor  for  life,  hard  labor,  etc.  The  jury  was  to 
determine  the  degree  of  guilt  and  the  judge  was 
to  apply  the  penalty.1 

After  deciding  the  question  of  guilt  the  jury 
presided  over  by  the  judge  could  determine  the 
punishment.2  This  would  prevent  the  acquittals 
which  sometimes  take  place  now  because  the  jury 
is  uncertain  what  the  penalty  will  be  if  it  convicts. 

The  necessity  of  securing  a  unanimous  decision 
in  English  and  American  courts  frequently  causes 
long  delays  and  great  uncertainty  which  is  a  very 
bad  thing  for  justice.  It  is  true  that  this  rule  is 
for  the  protection  of  the  accused  in  order  that  he 
shall  not  be  condemned  unless  all  twelve  jurors 
have  been  fully  persuaded  of  his  guilt.  But  there 
are  probably  very  few  cases  in  which  the  decision 
represents  a  real  unanimity.  In  most  cases  the  mi- 
nority yields  to  the  majority  on  account  of  the  pres- 
sure brought  to  bear  upon  it  to  reach  a  decision. 

1  Blanc:  in  the  Noitvelle  revue,  Paris,  1894. 

2  Cf.  Andre  Bougon :  De  la  participation  du  jury  a  I' 'appli- 
cation de  la  peine,  Paris,  1900. 

376 


THE    JURY 

Even  if  the  decision  is  not  to  be  by  a  bare  majority 
it  might  be  by  eight  or  nine  out  of  twelve.  "If, 
then,  two  out  of  three  can  justly  decide  a  case, 
why  cannot  eight  or  nine  out  of  twelve  jurymen 
do  the  same?  In  view  of  the  number  of  obstinate, 
perverse,  and  corrupt  jurymen  that  are  to  be  found, 
it  does  not  appear  right  that  in  every  instance  the 
plaintiff  in  civil  actions  or  the  prosecutor  in  the 
criminal  ones,  should  be  compelled  to  have  a  un- 
animous verdict  in  order  to  gain  their  cause."1 
Already  in  some  of  the  American  States  there  is  a 
tendency  towards  this  reform  as  in  Utah  and  Okla- 
homa where  in  criminal  cases  less  grave  than 
felonies  only  a  three- fourths  majority  is  needed, 
the  same  being  true  in  all  civil  cases.  The  same 
system  somewhat  modified  exists  in  Missouri. 

The  number  of  jurors  was  hit  upon  by  chance. 
As  we  have  seen  jurors  were  originally  witnesses 
and  a  considerable  number  were  then  required. 
A  large  number  may  also  have  been  needed  in  the 
past  in  order  to  give  the  jurors  courage.  But 
there  is  no  particular  reason  now  why  the  jury 
should  number  twelve.  A  smaller  number,  as,  for 
example,  seven  would  be  much  less  expensive.  It 
is  possible  also  that  the  discussion  in  a  smaller  jury 
would  be  more  coherent  and  logical  than  in  a  larger 
jury  since  its  members  would  come  into  closer 
touch  with  each  other. 

A  system  similar  to  the  jury  system  is  that  in 
which  a  small  number  of  citizens  sit  with  the  judge 
a"s  lay  assessors  and  judge  both  fact  and  law.  In 

*E.  A.  Thomas:    Op.  cit. 

377 


CRIMINAL     PROCEDURE 

France  where  these  assessors  arc  called  "echevins" 
there  are  a  few  courts  in  which  this  system  is  used 
and  the  same  is  true  in  a  number  of  other  Euro- 
pean countries.  But  this  system  is  used  the  most 
in  Germany  where  the  assessors  are  called  "schof- 
fen."  The  judge  sits  sometimes  with  two,  some- 
times with  four,  sometimes  even  with  as  many  as 
six  of  these  assessors.  Most  of  the  less  important 
crimes  in  Germany  are  tried  in  these  courts.  It 
is  evident  that  the  lay  assessor  is  much  more  of  a 
judge  than  the  juror  since  he  judges  questions  of 
law  as  well  as  of  fact.  The  assessors  are  said  to 
be  more  or  less  incompetent  and  tend  to  acquit  in 
the  case  of  crimes  of  a  class  that  they  are  likely  to 
commit.1  It  is  to  be  noted  that  they  are  like  jurors 
in  these  respects.  But  their  decisions  are  on  the 
whole  better  than  those  of  a  jury  since  the  judge 
presides  over  them.  Furthermore  there  is  not  as 
much  delay  in  bringing  cases  to  trial  as  there  is  be- 
fore a  jury. 

In  some  cases  where  technical  knowledge  is  in- 
volved it  may  be  wise  to  have  juries  with  technical 
knowledge.  These  would  be  juries  of  experts  and 
would  be  free  from  some  of  the  faults  of  ordinary 
juries.  When  the  accused  is  a  woman  it  may 
sometimes  be  well  to  have  a  jury  of  women.  As 
a  matter  of  fact  the  common  law  provided  for  a 
jury  of  women  in  one  case,  and  in  some  of  the 
Western  States  where  woman  suffrage  exists  a 
•  woman  who  is  a  party  to  a  suit  has  the  right  to 
demand  a  jury  of  women  in  certain  cases. 

1  Jean  Cruppi :  Op  cit. 

378 


THE    JURY 

These  reforms  which  we  have  suggested  may 
correct  in  a  measure  the  faults  of  the  jury.  But 
let  us  now  consider  the  objections  which  are  made 
to  the  fundamental  principles  on  which  the  jury  is 
based  and  weigh  them  with  the  principal  argu- 
ments in  favor  of  the  jury. 

In  the  first  place  the  jury  is  not  fitted  to  the  in- 
stitutions and  character  of  many  races.  As  we 
have  seen  the  jury  was  introduced  rather  abruptly 
into  Continental  procedure  after  the  French  Revo- 
lution. Its  use  had  not  developed  gradually  in 
Continental  countries,  consequently  it  did  not  al- 
ways harmonize  well  with  other  political  and  social 
institutions.  Furthermore  the  character  of  many 
races  unfits  them  for  performing  jury  service.  For 
example  peoples  of  the  South  tend  to  be  governed 
too  much  by  their  emotions  and  passions  in  mak- 
ing their  decisions.  The  jury  has  perhaps  been 
most  successful  in  England  where  it  has  developed 
gradually  and  has  become  an  integral  part  of  the 
national  life.  Its  success  there  has  also  been  due 
to  the  sober  and  sterling  character  of  the  people 
and  the  high  esteem  in  which  individual  rights  are 
held  though,  as  we  have  seen,  the  jury  has  not  al- 
ways been  successful  in  defending  them. 

It  is  sometimes  contended  in  behalf  of  the  jury 
that  there  is  a  connection  between  the  suffrage,  or 
making  the  law,  and  serving  on  juries,  or  admin- 
istering the  law.1  It  is  said  that  under  a  demo- 
cratic regime  the  people  are  able  to  watch  over  the 
administration  of  the  laws  by  means  of  the  jury. 

1  Cf.  Henry  Crompton  :  Our  Criminal  Justice,  London,  1905. 
379 


CRIMINAL     PROCEDURE 

But  there  are  reasons  for  making  a  distinction  be- 
tween electoral  right  and  judicial  function.  In  the 
first  place  the  jury  confuses  legislative  and  judicial 
functions  and  it  is  probably  better  to  have  the 
judicial  functions  performed  by  an  agency  standing 
somewhat  apart  from  the  people.  Furthermore, 
the  judicial  function  requires  a  certain  amount  of 
special  knowledge  which  is  not  necessary  for  the 
electoral  right.  Ferri  has  compared  the  two  as 
follows:  "The  suffrage  is  an  elementary  right,  the 
judicial  function  is  a  technical  function;  these  are 
very  different  things  not  only  by  their  nature,  but 
also  by  their  object;  the  voter  only  designates  a  per- 
son whom  he  considers  provided  with  certain  gen- 
eral qualities;  the  juror  must  pronounce  a  judgment 
which  should  be  the  result  of  a  very  complicated 
critical  examination.  Th^  action  of  the  voter  has 
only  an  indirect  efficacy;  no  more;  it  is  in  itself 
the  avowal  that  the  voter  makes  of  his  inaptitude 
to  perform  the  charge  which  is  entrusted  to  more 
capable  persons;  the  action  of  the  jury,  on  the 
contrary,  has  a  direct  and  immediate  efficacy,  and 
assumes  that  there  exists  in  the  agent  a  special  and 
recognized  capacity."1 

The  jury  has  been  prohibited  from  judging 
questions  of  law  because  it  is  not  supposed  to  know 
enough  to  do  so.  But  to  judge  a  question  of  fact 
is  very  frequently  more  difficult  than  to  judge  a 
question  of  law  whether  it  is  a  question  of  evi- 
dence or  of  the  guilt  of  a  person.  A  judge  in 
deciding  a  question  of  law  has  usually  a  limited 

*Op.  dt.  pp.  550-551. 

380 


THE    JURY 

number  of  solutions  and  has  precedents  on  which 
to  base  himself.  A  jury  has  no  precedents  and  no 
system  of  jurisprudence  on  which  to  base  itself 
and  it  has  frequently  a  large  number  of  possible 
solutions.  And  yet  it  takes  a  special  knowledge 
to  decide  these  questions  of  fact  as  we  have  seen 
in  our  study  of  the  anthropological  characteristics 
of  the  criminal,  the  psychology  of  testimony,  etc. 
Specialization  is  needed  in  the  decision  of  these 
questions  of  fact  as  it  is  needed  for  the  questions  of 
law  and  it  is  the  principle  of  specialization  that  the 
jury  violates.  "While,  in  professions,  trades,  and 
business  of  all  sorts,  special  training  and  special 
skill  are  universally  regarded  as  the  indispensable 
conditions  of  success,  or  even  of  admission,  it  is  a 
curious  anomaly  that  men  without  experience  or 
discipline  are  chosen  for  jurors,  that  is,  for  the  dis- 
charge of  functions  virtually  judicial,  and  for  the 
accurate  sifting  and  weighing  of  conflicting  tes- 
timony."1 

Perhaps  the  principal  argument  in  favor  of  the 
jury  is  that  it  keeps  the  judge  and  justice  in  touch 
with  the  public.  It  keeps  the  judge  informed  of 
the  state  of  the  public  conscience  and  judges  accord- 
ing to  the  prevailing  standard  of  morality.  "From 
their  position  in  life  its  members  are  likely  to 
know  more  of  the  parties  and  witnesses,  and  are 
consequently  better  able  to  enter  into  their  views 
and  motives;  and  from  the  novelty  of  their  situa- 
tion they  bring  a  freshness  and  earnestness  to 
the  inquiry,  which  the  constant  habit  of  deciding, 

1 E.  A.  Thomas :    Op.  cit. 

38i 


CRIMINAL     PROCEDURE 

adjudicating  and  punishing  dims  and  blunts  more 
or  less  in  the  mind  of  every  judge."1  There  may 
be  certain  practical  reasons  for  keeping  justice  on 
a  level  with  the  prevailing  moral  standard  in  order 
to  keep  the  people  in  sympathy  with  justice.  But 
the  administration  of  justice  should  also  tend  to 
raise  the  moral  standard  and  to  accomplish  this  it 
should  be  superior,  as  much  as  is  practicable,  to 
the  ideas,  prejudices,  etc.,  of  a  people. 

As  a  school  of  citizenship  the  jury  may  dissem- 
inate a  little  legal  knowledge  among  the  public 
but  the  gain  in  this  direction  is  scarcely  suffi- 
cient to  pay  for  the  expense  and  trouble  it  causes 
the  jurors.  ''It  places  an  unjust  burden  upon 
those  who  are  compelled  to  serve  as  jurors. 
Numerous  are  the  complaints  that  the  valuable 
time  of  intelligent  business  men  is,  without  any 
reasonable  compensation,  occupied  in  hearing  and 
settling  petty  disputes  between  their  idle  and  quar- 
relsome neighbors.  Very  often  they  could  much 
better  afford  themselves  to  pay  the  amount  involved 
than  to  waste  their  time  in  serving.  These  are  the 
jurors  that  courts  desire  to  have  impaneled.  Up- 
on the  other  hand,  those  idle  hangers-on  of  courts, 
who  always  wish  to  be  drawn,  are  the  very  persons 
who  are  most  objectionable."2.  Furthermore,  con- 
stant attempts  at  evasion  do  not  make  the  jury  ap- 
pear as  the  "best  means  of  inculcating  civic  duty" 
in  the  average  citizen.  By  codifying  the  law  and 

*W.   M.    Best:    The  Principles   of  the  Law   of  Evidence, 
London,    1906,    loth   edition,  p.   71. 
'E.  A.  Thomas:  Op.  cit. 

382 


THE   JURY 

in  other  ways  a  knowledge  of  the  law  can  be 
disseminated.  And  if  the  jury  results  in  a  malad- 
ministration of  justice  its  utility  for  educating  the 
public  certainly  cannot  be  justified. 

We  have  already  noted  the  influence  the  jury 
has  had  upon  the  English  law  of  evidence.  This 
law  has  been  devised  in  order  to  protect  the  jury 
against  being  influenced  by  unimportant  testi- 
mony. A  good  deal  of  evidence  is  excluded  not- 
withstanding the  fact  that  the  hearsay  evidence  or 
opinion  of  a  person  of  good  intelligence  and  char- 
acter may  be  worth  more  than  the  direct  evidence 
of  an  inferior  person.  In  France  hearsay  evi- 
dence and  opinion  are  usually  judged  by  expe- 
rienced judges  who  are  capable  of  separating  the 
wheat  from  the  chaff  and  who  are  not  hampered 
by  rules  of  evidence  and  case  law.  The  English 
law  of  evidence,  on  the  contrary,  increases  the 
complexity  of  the  procedure  and  frequently  delays 
its  action.  "The  question  of  what  is  and  what  is 
not  proper,  in  the  way  of  testimony,  to  go  before 
a  jury,  raises  one  of  the  most  delicate  and  difficult 
points  within  the  scope  of  jurisprudence.  The 
number  of  motions  made  in  reference  to  such  mat- 
ters, and  the  amount  of  delay  caused  thereby, 
would,  if  a  correct  statement  of  them  were  pub- 
lished, startle  the  country.  The  charge  of  the 
court,  the  conduct  of  the  jury,  and  the  behavior  of 
the  bailiff  also  furnish  plenty  of  material  for  appli- 
cations for  new  trials.  The  admission  of  incom- 
petent evidence  of  a  feather's  weight  has  often 
caused  a  fair  verdict  to  be  set  aside,  an  actual 
383 


CRIMINAL     PROCEDURE 

murderer  to  be  given  a  new  trial,  or  a  just  claim- 
ant to  be  put  to  yet  greater  expenses  of  litigation 
and  still  further  delay."1  Were  it  not  for  the  jury 
the  law  of  evidence  could  be  much  simpler  and 
less  rigid. 

It  is  now  very  evident  that  the  decisions  of  juries 
are  more  or  less  governed  by  chance.  Science  can 
play  no  part  in  them,  only  common  sense  and  very 
rarely  good  sense.  The  jury  system  violates  the 
principle  of  the  division  of  labor,  which  is  now 
recognized  in  nearly  every  sphere  of  human  activ- 
ity, because  it  does  not  utilize  specialized  knowledge 
And  yet  the  use  of  scientific  methods  of  judging 
facts  and  guilt  is  imperative.  This  necessity  is 
fatal  to  the  jury  system. 

We  must  therefore  face  the  question  of  the  aboli- 
tion of  the  jury.  The  principal  objection  raised  is 
the  difficulty  of  replacing  it  in  the  present  proce- 
dure. It  is  contended  that  the  jury  is  preferable 
to  the  judge  on  account  of  certain  criticisms  made 
of  the  judge  which  will  be  considered  in  the  next 
chapter  on  the  judiciary.  But  under  a  scientific 
regime  the  jury  can  be  replaced  by  scientifically 
trained  judges  who  will  be  free  from  most  of  the 
faults  of  the  jury  and  also  of  the  judges  of  to-day. 

The  jury  system  has  had  an  important  political 
aspect  in  the  past  which  still  exists  to  a  certain  ex- 
tent to-day.  The  jury  was  one  of  the  means  by 
which  the  people  exercised  a  power  in  the  govern- 
ment though,  as  we  have  seen,  it  was  not  as  suc- 
cessful as  is  usually  supposed  in  defending  the 

1 E.  A.  Thomas :    Op.  cit. 

384 


THE   JURY 

people's  rights  and  liberties.  This  made  the  jury 
a  political  as  well  as  a  judicial  institution.  Napo- 
leon the  First  regarded  the  jury  as  purely  political 
in  its  origin  and  claimed  the  right  of  suspending 
trial  by  jury  and  did  so  in  certain  departments. 
But  these  political  reasons  for  the  jury  scarcely 
exist  any  longer  under  the  present  democratic 
regime  when  the  people  have  a  large  legislative  as 
well  as  judicial  power.  "There  is  no  real  war- 
rant for  the  perpetuation  of  the  jury  system,  be- 
yond the  constitutional,  and  perhaps  conjectural, 
tradition  which  attributes  to  it  a  large  share  in  the 
vindication  and  preservation  of  Anglo-Saxon  lib- 
erties."1 The  old  axiom  that  a  man  should  be 
tried  by  his  peers  has  become  meaningless  now 
that  a  large  measure  of  political  equality  exists^ 
As  one  writer  has  put  it :  "Does  a  man  cease  to  be 
my  peer  because  he  is  a  judge,  after  having  passed 
several  years  of  his  life  in  studying  the  laws?"2  If 
this  principle  were  rigidly  applied  criminals  would 
be  tried  by  criminals,  children  by  children,  etc. 

Such  political  value  as  the  jury  has  may  be  pre- 
served by  retaining  it  for  political  crimes  and  press 
offenses  which  tend  to  be  public  and  political  in 
their  character.  It  is  true  that  in  history  the  jury 
has  tended  to  be  either  servile  or  rebel  in  political 
cases.  But  this  will  probably  be  less  frequent  in 
the  future  since  tyrannical  and  despotic  power  is 
less  likely  to  exist.  Lombroso  has  suggested  that 
a  list  of  jurors  from  the  educated  classes  be  elected 

1 0.  E.  Bodington  :    Op.  cit.  p.  120. 

3  L.  Smyers:  Le  jury  en  matiere  criminelle,  Nice,  1885. 
25  385 


CRIMINAL     PROCEDURE 

by  the  people  from  which  would  be  drawn  the 
juries  for  political  cases.1  However,  this  might 
put  too  much  power  in  the  hands  of  one  class  and 
destroy  political  equality.  As  Ferri  has  expressed 
it:  "I  think  it  useful  to  preserve  the  jury  for  polit- 
ical crimes  and  offenses  of  the  press  and  of  social 
interest,  although  for  these  last  the  judgment  of 
the  jurors  may  suffer  from  the  influence  of  class 
interests,  which  can  be  combatted  only  by  making 
a  large  place  in  the  jury  for  the  social  class  of  the 
workers,  which  is  excluded  from  it  to-day."2 

There  are  difficulties  in  the  way  of  using  the  jury 
for  press  offenses.  Very  frequently  an  ordinary 
jury  will  refuse  to  convict  a  journal  because  it 
does  not  see  before  it  the  guilty  writer.  It  knows 
that  the  defendant  representing  the  paper  is  a 
man  of  straw  and  is  unwilling  to  inflict  a  penalty 
upon  a  man  who  is  morally  innocent.  Further- 
more the  trial  of  a  journal  is  usually  fought  on 
broader  issues  than  the  character  of  the  plaintiff. 
It  is  the  character  of  the  government,  administra- 
tion, etc.,  which  he  represents  which  is  really  at 
issue.  Consequently  a  good  deal  of  political  feel- 
ing and  prejudice  enters  into  the  decision  of  such 
a  case  by  an  ordinary  jury  It  is  indeed  a  difficult 
problem  to  determine  the  best  method  of  trying 
these  press  offenses.  On  the  one  hand  it  is  es- 
sential to  democratic  institutions  that  the  press 
should  be  left  as  free  as  possible  for  the  expression 
of  public  opinion.  On  the  other  hand,  without  any 

1Lombroso   and   Laschi :   Le  crime  poliiique,  Paris,   1892. 
2  Op.  cit.  pp.  552-553- 

386 


THE    JURY 

legal  restraint  the  press  becomes  an  unofficial 
prosecutor  without  bounds  to  its  power  of  prose- 
cuting persons  and  policies.  The  jury  has  proved 
to  be  rather  inefficient  for  the  trial  of  these  cases. 
The  judge  is  supposed  to  be  too  susceptible  to 
governmental  influence.  Cruppi  has  suggested 
that  press  offenses  be  tried  by  a  judge  with  two 
men  of  letters  as  lay  assessors  who  would  be  both 
judges  and  experts.1  Possibly  in  the  future  there 
will  be  a  judge  sufficiently  impartial  and  independ- 
ent to  judge  these  cases  successfully. 

The  grand  jury  differs  from  the  petit  jury  in 
that  it  is  a  jury  of  examination  and  not  of  judg- 
ment and  also  because  it  considers  only  the  cause 
and  not  at  all  the  defendant  since  the  accused  does 
not  appear  before  it.  But  some  of  the  criticisms 
of  the  petit  jury  apply  also  to  the  grand  jury.  It 
has  not  the  trained  power  of  attention  of  the  pro- 
fessional judge  and  has  no  knowledge  of  the 
psychology  of  testimony  by  means  of  which  to 
estimate  the  value  of  testimony.  It  is,  further- 
more, a  very  cumbersome  and  expensive  way  of 
making  the  preliminary  examination  and  since 
very  little  time  is  given  to  each  case  the  examina- 
tion cannot  be  thorough.  This  examination  should 
be  made  by  a  judge  similar  to  the  French  juge 
d' instruction  who  would  be  well  acquainted  with 
the  psychology  of  witnesses  and  with  every  means 
of  detecting  evidence  and  estimating  its  value. 


1  op.  dt. 

3»7 


CHAPTER  XI 
THE  JUDICIARY 

We  have  now  reached  the  highest  rank  in  the 
legal  hierarchy,  that  of  the  judge  Judicial  func- 
tions were  originally  performed  by  the  king  or 
chief  of  a  tribe.  Later  they  were  delegated  by  him 
to  judges  who  frequently  were  priests.  These 
judges  had  a  judicial  power  equal  to  that  of  the 
king  which  was  nearly  if  not  quite  supreme.  They 
were  not  restricted  by  rules  of  procedure  or  penal 
codes. 

But  our  principal  interest  in  the  history  of  the 
judiciary  is  in  the  part  it  has  played  in  the  two 
typical  forms  of  procedure  which  we  have  de- 
scribed. As  we  have  already  noted,  in  the  pro- 
cedure of  accusation  the  judge  is  an  arbiter 
between  two  private  parties.  In  the  procedure  of 
investigation  he  is  the  delegate  of  society  whose 
duty  it  is  to  conserve  the  interests  of  society. 

When  public  prosecution  was  introduced  into 
the  systems  of  procedure  based  on  the  procedure 
of  accusation  the  judge  acted  sometimes  as  counsel 
for  the  defense.  This  was  true  in  English  pro- 
cedure down  to  a  comparatively  recent  date. 
Blackstone  refers  to  this  function  of  the  judge 
in  the  following  passage:  "It  is  a  settled  rule  at 
388 


THE    JUDICIARY 

common  law,  that  no  counsel  shall  be  allowed  a  pris- 
oner upon  his  trial,  upon  the  general  issue  in  any 
capital  crime,  unless  some  point  of  law  shall  arise 
proper  to  be  debated.  A  rule,  which  (however  it 
may  be  palliated  under  cover  of  that  noble  declar- 
ation of  the  law,  when  rightly  understood,  that  the 
judge  shall  be  counsel  for  the  prisoner;  that  is, 
shall  see  that  the  proceedings  against  him  are  legal 
and  strictly  regular)  seems  to  be  not  at  all  of  a 
piece  with  the  rest  of  the  humane  treatment  of 
prisoners  by  the  English  law.  And  the  judges 
themselves  are  so  sensible  of  this  defect,  that  they 
never  scruple  to  allow  a  prisoner's  counsel  to  in- 
struct him  what  questions  to  ask,  or  even  to  ask 
questions  for  him,  with  respect  to  matters  of  fact; 
for  as  to  matters  of  law,  arising  on  the  trial,  they 
are  entitled  to  the  assistance  of  counsel."1  But 
this  function  of  the  judge  resulted  from  the  tem- 
porary derangement  of  the  balance  between  the 
two  parties  to  a  trial  by  the  introduction  of  public 
prosecution.  It  is  obvious  that  this  is  not  a  legiti- 
mate function  for  a  judge  since  it  puts  him  in  a 
partizan  position. 

There  are  various  restrictions  upon  the  power 
of  a  judge.  In  the  first  place  there  are  the  laws 
governing  procedure  and  the  penal  code  which  de- 
fines crimes  and  fixes  the  penalties.  In  the  second 
place  the  judge  is  limited  by  the  jury  which  has 
the  power  of  determining  questions  of  fact  in  many 
cases. 

The  personnel  of  the  criminal  bench  is  composed 

1  Commentaries :  Book  IV,  Chap.  25. 
389 


CRIMINAL     PROCEDURE 

usually  of  lawyers  with  a  purely  legal  training. 
Some  of  them  are  members  also  of  the  civil  bench 
where  they  do  most  of  their  work. 

The  criminal  bench  may  be  divided  into  two 
classes,  that  of  the  examining  magistrate  and  that 
of  the  judge  for  judgment.  In  England  and 
America  the  examining  magistrate  is  also  a  police 
magistrate  who  has  the  power  of  summary  trial  in 
certain  cases.  But  this  power  is  incompatible  with 
the  most  efficient  examination  on  the  part  of  the 
magistrate.  He  cannot  be  so  open-minded  and  so 
active  in  his  investigation  if  he  knows  that  he  must 
come  to  a  final  decision  and  must,  therefore,  be 
constantly  stopping  to  weigh  the  evidence.  The 
position  of  the  French  juge  d 'instruction  is  prefer- 
able in  this  respect  since  his  function  is  only  that 
.  of  examining.  His  powers  may  possibly  be  too 
arbitrary  and  too  extensive  but  his  facilities  for 
making  a  careful  examination  are  far  superior  to 
i  those  of  the  Anglo-American  examining  magistrate. 

The  judge  has  exclusive  powers  of  judging  only 
in  less  important  cases  in  most  civilized  countries 
since  the  graver  crimes  are  usually  tried  by  a  jury. 
Let  us  review  briefly  the  functions  of  the  judge 
in  a  trial  before  the  jury.  In  the  first  place  the 
judge  has  supervision  over  the  taking  of  evidence. 
In  English  and  American  courts  the  judge  inter- 
prets and  applies  the  law  of  evidence.  In  Con- 
tinental procedure  the  presiding  judge  conducts 
the  examination  and  since  the  law  of  evidence  is 
very  elementary  he  has  a  discretionary  authority 
as  to  what  evidence  shall  be  admitted,  etc.  After 
390 


THE    JUDICIARY 

the  examination  and  contradictory  debate  in 
Anglo-Saxon  procedure  comes  the  charge  of  the 
judge  to  the  jury.  In  this  summing  up  the  judge 
is  supposed  to  state  the  law  connected  with  the 
case  and  to  review  the  evidence  only  as  much  as  is 
necessary  for  this  statement  of  law.  He  is  not 
expected  to  express  his  opinion  but  will  very  fre- 
quently show  it  and  is  likely  to  influence  the  jury 
by  doing  so.  If  the  jury  brings  in  a  verdict  of 
guilty  the  judge  pronounces  the  sentence.  The 
power  of  the  judge  in  determining  what  the  penalty 
shall  be  has  been  increasing  recently.  On  the 
Continent  the  expedient  of  extenuating  circum- 
stances gives  the  judge  a  certain  amount  of  lati- 
tude in  determining  the  penalty  and  the  indeter- 
minate sentence  does  the  same  in  America.  The 
suspension  of  sentence  and  conditional  release  also 
increase  the  powers  of  the  judge.  It  has  also  been 
suggested  that  the  judge  be  given  the  power  of 
pardoning  but  this  is  scarcely  necessary,  when  he 
has  the  powers  of  suspending  sentence  and  of  con- 
ditional release. 

The  principal  object  of  this  chapter  is  to  deter- 
mine whether  the  powers  of  the  judge  should  be 
increased  still  more  and  in  particular  as  to  whether 
the  jury  should  be  superseded  by  the  judge.  And 
first  must  be  considered  the  faults  of  the  judge 
which  serve  as  objections  to  such  an  increase  in 
his  powers. 

The  judge  of  to-day  tends  to  regard  the  crim-| 
inal  as  a  juridical  abstraction.     This  results   from  I 
the  exclusively  legal  training  of  the  judge  and  we  I 
391 


CRIMINAL     PROCEDURE 

shall  discuss  later  on  the  measures  by  which  this 
tendency  can  be  prevented.  It  is  contended  that 
the  judge  tends  to  see  guilt  in  every  accused  per- 
son. The  champions  of  the  jury  have  made  a 
great  deal  of  this  criticism  and  have  undoubtedly 
carried  it  too  far.  It  is  true  that  a  long  experi- 
ence in  performing  judicial  functions  and  the 
condemnation  of  many  criminals  may  develop  in  a 
judge  the  tendency  to  regard  every  defendant  as 
guilty.  But  this  is  not  necessarily  the  case  and 
it  probably  depends  to  a  large  extent  upon  the  tem- 
perament of  the  judge.  As  we  have  seen  there  are 
certain  features  of  Continental  procedure  which 
stimulate  this  tendency  in  judges,  as,  for  example, 
reading  the  record  of  the  preliminary  examination 
before  the  trial  and  conducting  the  examination 
during  the  trial,  but  these  features  can  and  should 
be  changed.  The  publicity  of  the  trial  is  a  check 
upon  the  judge  since  the  public  would  quickly  re- 
sent any  grave  partiality  of  the  judge  against  the 
accused.  The  decision  of  a  judge  is  rarely  ever 
absolute  and  many  guarantees  of  individual  rights 
exist  in  the  way  of  appeal,  revision  of  sentences, 
etc.,  and  these  guarantees  are  increasing  as  pun- 
ishment is  becoming  more  individualized.  For 
this  reason  also  judges  will  manifest  this  tendency 
less  since  they  will  be  influenced  more  by  the 
character  and  personality  of  each  defendant  and 
will  not  be  so  likely  to  read  guilt  into  the  circum- 
stances which  led  to  the  prosecution. 

The  true  functions  of  the  judge  are  to  estimate 
the  value  of  evidence  and  to  perscribe  the  right 
392 


THE    JUDICIARY 

treatment.  This  last  he  should  do  only  tentatively 
but  his  power  may  be  extended  over  the  treatment 
itself  by  means  of  the  periodic  revision  of  sen- 
tences which  will  be  discussed  later.  We  must 
now  consider  how  the  judges  can  be  better  fitted 
for  performing  these  functions. 

In  the  first  place  the  criminal  bench  should  be 
separated  from  the  civil.  It  is  from  their  exclu- 
sively legal  training  and  their  experience  on  the  civil 
bench  that  arises  the  tendency  of  judges  to  regard 
the  criminal  as  a  juridical  abstraction.  This  has 
also  caused  the  antagonism  of  legal  and  scientific 
interests  in  procedure.  Dominated  as  they  are  by 
legal  standards  many  judges  oppose  the  introduc- 
tion of  the  scientific  standards  of  criminology. 
Garofalo  speaks  as  follows  of  the  fitness  of  these 
judges  for  trying  criminal  cases:  "Accustomed  by 
the  character  of  their  studies  to  make  an  abstrac- 
tion of  man,  they  are  occupied  only  with  formulas. 
For  the  law  is  entirely  indifferent  to  all  that  con- 
cerns the  physique  and  the  morale  of  individuals; 
the  goodness  or  badness  of  a  creditor  could  not 
have  the  least  influence  upon  the  validity  of  his 
credit.  This  strictly  juridical  character  is  very  dif- 
ferent from  penal  science  which  has  for  object  to 
fight  against  a  social  infirmity,  crime.  The  points 
of  contact  are  rare  between  the  two  branches,  which 
are  for  us  two  entirely  different  sciences.  Why, 
therefore,  should  the  same  functionaries  be  used 
in  two  public  services  which  are  essentially  foreign 
to  one  another?  The  member  of  a  civil  tribunal 
called  to  judge  in  a  penal  matter,  keeps  all  his 
393 


CRIMINAL     PROCEDURE 

habits ;  it  is  not  the  individual  that  attracts  his 
attention ;  it  is  the  legal  definition  of  the  deed  which 
preoccupies  him.  He  thinks  only  of  the  interest 
of  the  law,  the  social  interest  escapes  him."1 

The  training  which  would  develop  a  scientific 
criminal  magistracy  has  been  suggested  in  the  pre- 
ceding chapters.  There  should  be  a  special  course 
in  the  law  school  for  those  who  wish  to  prepare 
for  this  branch  of  the  judiciary.  In  this  course 
should  be  studied,  in  addition  to  the  fundamental 
principles  of  law  and  the  legal  aspects  of  pro- 
cedure, criminal  anthropology  and  sociology  and 
the  psychology  of  testimony.  In  connection  with 
this  course  should  be  held  clinics  in  prisons,  hos- 
pitals, insane  asylums  and  morgues.  Already  in 
the  law  schools  at  Paris  and  Lyons  in  France,  at 
Rome  in  Italy  and  elsewhere  on  the  Continent 
courses  are  being  given  in  criminological  and 
penal  science  and  the  scope  of  these  courses 
should  be  extended  and  made  compulsory  for  those 
who  are  preparing  for  the  criminal  magistracy. 
Then  should  come  some  experience  in  gathering 
and  examining  evidence  in  connection  with  the 
police  force.  Thus  would  be  acquired  an  ac- 
quaintance with  police  methods  and  the  ability  to 
estimate  the  value  of  evidence.  A  temporary 
residence  in  a  penal  institution  would  also  be  ad- 
visable in  order  to  study  criminals  at  first  hand 
and  to  become  acquainted  with  penal  methods. 
The  student  would  now  be  prepared  to  take  part 
in  a  trial  as  counsel.  It  would  probably  be  best 

1  La  criminologie :  Paris,  1905,  pp.  396-397. 
394 


THE    JUDICIARY 

for  him  to  commence  as  a  public  defender  in  order 
to  avoid  all  possibility  of  ever  becoming  prejudiced 
against  the  accused.  After  a  certain  amount  of 
experience  as  a  public  defender  he  should  become 
a  public  prosecutor  and  then  alternate  between  the 
two  at  more  or  less  regular  intervals  as  has  already 
been  described  in  the  chapter  on  the  prosecution 
and  defense.  This  would  prevent  him  from  be- 
coming biased  on  either  side  and  would  develop 
his  ability  to  judge  the  value  of  evidence  since  he 
would  have  to  view  it  from  both  sides. 

From  the  ranks  of  the  public  prosecutors  and 
defenders  would  be  recruited  the  judges  for  the 
criminal  bench.  These  judges  would  be  free 
from  most  of  the  faults  of  the  judges  of  to-day  and 
would  have  the  technical  knowledge  which  the 
jury  lacks.  They  would,  therefore,  be  the  logical 
substitutes  for  the  jury. 

The  abolition  of  the  jury  would  be  beneficial  in 
various  other  ways.  The  reforms  we  have  sug- 
gested in  the  law  of  evidence  in  the  way  of  making 
it  more  flexible  and  in  reducing  to  a  minimum  the 
amount  of  evidence  excluded  could  be  accomplished. 
Where  the  accused  have  the  choice  between  a  sum- 
mary trial  and  a  trial  by  jury  the  summary  trial  is 
frequently  chosen,  showing  a  preference  on  the 
part  of  many  people  for  a  trial  by  a  judge  alone. 
In  England  summary  jurisdiction  acts  were  passed 
in  1879  and  1899,  which  gave  magistrates  the 
power  to  try  and  convict  summarily  in  the  case  of 
many  indictable  offences  on  consent  of  the  accused. 
This  consent  is  usually  given  in  order  to  have  no 
395 


CRIMINAL    PROCEDURE 

delay  before  the  trial,  in  hope  of  a  shorter  sentence 
if  convicted,  and  on  account  of  confidence  in  the 
fairness  of  the  magistrates.  The  report  of  the 
Commissioners  of  Prisons  for  the  year  ending 
March  31,  1904,  shows  that  189,888  were  received 
into  the  prisons  of  England  and  Wales,  of  whom 
181,248  had  been  convicted  and  sentenced  by 
magistrates  alone  and  only  8,640  had  been  con- 
victed by  a  jury.  Of  those  convicted  by  magis- 
trates 21,690  had  consented  to  be  tried  summarily 
for  indictable  offenses,  leaving  159,558  convicted 
by  magistrates  summarily  for  non-indictable  of- 
fenses.1 These  figures  show  that  a  considerable 
number  preferred  trial  by  a  judge  to  trial  by  jury 
and  they  also  show  that  only  a  very  small  per- 
I  centage  of  trials  are  by  jury,  in  this  particular  in- 
;  stance  the  percentage  being  a  little  more  than  four 
•  and  a  half.  And  yet  there  has  been  no  protest 
\  against  having  the  judges  try  these  cases.  This 
would  seem  to  indicate  that  even  to-day  trial  by  a 
judge  is  preferable  to  trial  by  jury.  One  great 
advantage  of  trial  by  a  judge  is  the  sobriety  and 
calmness  of  the  procedure,  because  counsel  leave 
out  the  claptrap  and  oratory  which  they  use  be- 
fore a  jury.  A  notable  example  of  this  is  fur- 
lnished  by  the  Dutch  courts.  In  Holland  there  has 
never  been  a  jury.  A  visit  to  a  Dutch  court  shows 
the  marked  difference  between  it  and  courts  in 
other  countries  where  juries  are  used.  The  coun- 
sel are  much  quieter  and  more  to  the  point  in  their 

1  Sir  Kenelm  Digby :  in  the  introduction  to  Our  Criminal 
Justice,  by  Henry  Crompton,  London,   1905. 
396 


THE    JUDICIARY 

arguments  and  the  judges  are  much  more  attentive 
and  take  many  notes. 

There  are  many  more  checks  upon  a  judge  than 
upon  a  jury.  Stephen  has  stated  some  of  them  in 
the  following  passage:  "The  securities  which  can 
be  taken  for  justice  in  the  case  of  a  trial  by  a 
judge  without  a  jury  are  infinitely  greater  than 
those  which  can  be  taken  for  trial  by  a  judge  and 
jury.  i.  The  judge  is  one  known  man,  holding  a 
conspicuous  position  before  the  public,  and  open 
to  censure,  and,  in  extreme  cases,  to  punishment 
if  he  does  wrong:  the  jury  are  twelve  unknown  < 
men.. . .  2.  Juries  give  no  reasons,  but  judges  do  in  \ 
some  cases,  and  ought  to  be  made  to  do  so  formally 
in  all  cases  if  juries  were  dispensed  with.  This  in 
itself  is  a  security  of  the  highest  value  for  the 
justice  of  a  decision.  An  unskilled  person  may 
no  doubt  give  bad  reasons  for  a  sound  conclusion, 
but  it  is  nearly  impossible  for  the  most  highly 
skilled  person  to  give  good  reasons  for  a  bad  con- 
clusion and  the  attempt  to  do  so  would  imply  a 
determination  to  be  unjust  which  would  be  most 
uncommon.  3.  From  the  nature  of  the  case  there 
can  be  no  appeal  in  cases  of  trial  by  jury,  though 
there  may  be  a  new  trial."1 

If  then  even  to-day  trial  by  judges  is  so  much 
preferable  to  trial  by  jury,  how  much  more  so  will 
it  be  when  judges  are  trained  as  indicated  above 
and  are  capable  of  using  scientific  methods. 

The  problem  as  to  how  the  independence  of  the 

*J.  F.  Stephen:  A  History  of  the  Criminal  Law  of  Eng- 
land, London  1883,  Vol.  I,  pp.  568-569. 
397 


CRIMINAL     PROCEDURE 

criminal  bench  is  to  be  conserved  will  become  still 
more  important  when  trial  by  jury  has  been  abol- 
ished. In  the  lower  grades  of  the  judicial  hier- 
archy in  which  the  judge  holds  the  highest  rank 
the  choice  of  men  for  positions  would  have  to  be 
by  examination.  Already  in  Germany  examina- 
tions are  required  of  those  who  are  preparing  for 
judicial  positions.1  But  in  the  higher  ranks  an 
examination  would  not  be  an  adequate  test.  On 
the  Continent  judges  are  usually  appointed  for  life 
by  the  Government.  The  permanent  tenure  of 
office  gives  them  a  certain  amount  of  independence. 
But  even  so  they  are  to  a  certain  extent  under  the 
influence  of  the  executive  power,  for  their  advance- 
ment depends  upon  it.  In  the  United  States  the 
tendency  has  been  towards  the  election  of  judges. 
An  objection  to  this  is  the  temporary  tenure  of 
office  though  this  has  been  partially  removed  by 
making  the  terms  very  long.  If  the  criminal 
magistracy  is  to  become  a  special  profession  it  is 
essential  that  the  tenure  of  office  should  be  more 
or  less  permanent.  It  is,  however,  hard  to  deter- 
mine by  whom  the  choice  is  to  be  made,  whether 
by  the  executive  power,  by  the  legislative  power, 
or  by  the  people.  The  judiciary  should  not  be 
too  much  under  the  influence  of  any  one  force  and 
yet  it  must  be  under  an  efficient  control.  Public 
impeachment  would  be  a  power  which  could  act 
as  a  control  in  extreme  cases.  But  ordinarily  such 

1  W  Mittermaier :  in  the  Penal  Codes  of  France,  Germany, 
Belgium  and  Japan,  edited  by  S.  J.  Barrows,  Washington, 
1901,  p.  109. 

398 


THE    JUDICIARY 

a  control  could  probably  be  exercised  best  by  a 
board  of  discipline  composed  of  high  executive, 
legislative  and  judicial  officials.  On  account  of 
its  composite  character  as  representing  all  branches 
of  the  government  it  would  be  impartial  when  ex- 
ercising its  power  over  the  judiciary. 

To-day  when  a  judge  has  sentenced  a  criminal 
he  is  able  to  dismiss  him  from  his  mind.  Rarely 
ever  does  he  have  to  revise  his  sentence  and  then  it 
is  usually  on  some  purely  technical  legal  ground. 
Thus  the  judge  is  not  made  to  feel  very  keenly  the 
consequences  of  his  acts.  And  yet  he  should  feel 
these  consequences  in  order  to  increase  his  sense 
of  responsibility.  He  should  be  acquainted  with 
the  results  in  the  criminals.  His  sense  of  respon- 
sibility would  be  greatly  increased  if  he  were  given 
the  power  of  periodically  revising  the  sentences  or 
at  least  a  share  in  this  power.  In  this  connection 
the  question  as  to  whether  a  single  judge  is  prefer- 
able to  a  plurality  of  judges  is  of  considerable 
importance  It  is  contended  in  behalf  of  the  single 
judge  that  he  feels  wholly  responsible  for  his  acts 
while  a  plurality  of  jadges  tends  to  destroy  the 
feeling  of  responsibility  of  each  judge.  The 
single  judge,  therefore,  uses  greater  care  in  his 
decisions  and  is  governed  by  a  higher  moral  stand- 
ard. For  these  reasons  the  single  judge  would 
probably  be  preferable  in  most  cases.  In  sorne^ 
cases,  however,  it  might  be  advisable  to  have 
several  judges  where  each  would  be  a  specialist 
in  one  branch  of  the  broad  field  of  knowledge 
which  contributes  to  making  a  wise  decision  in  a 
399 


CRIMINAL     PROCEDURE 

complicated  case.  Such  a  board  of  judges  would 
correspond  to  a  jury  of  experts  and  would  give 
a  consensus  of  opinion  upon  the  case  under  exam- 
ination like  a  consultation  of  doctors. 

The  abolition  of  the  jury  and  the  increasing  in- 
dividualization  in  the  treatment  of  the  criminal  will 
greatly  increase  the  importance  of  judicial  func- 
tions. And  this  is  quite  in  accordance  with  the 
contention  we  have  already  made  that  procedure 
is  more  important  than  the  penal  code,  because 
procedure  is  of  interest  to  all  society,  to  honest 
people  as  well  as  to  criminals,  while  the  penal  code 
is  of  interest  only  to  criminals.  The  judiciary 
represents  procedure  and  administers  it.  Hence 
a  good  judiciary  is  more  important  than  a  good 
penal  code.  As  Ferri  has  put  it:  "To  defend 
society  against  criminality,  only  reforms  of  the 
penal  code  are  thought  of  ordinarily,  while  it  is 
necessary  before  everything  else  to  secure  a  good 
judicial  organization  by  choosing  carefully  the 
personnel,  then  to  attend  to  the  technical  organiza- 
tion of  repressive  measures,  in  the  next  place  with 
reforms  to  be  introduced  into  the  code  of  penal 
procedure  (which  is  the  code  of  honest  people) 
and  only  in  the  last  place  with  reforms  of  the  penal 
code  (which  is  the  code  of  criminals).  We  find 
upon  this  point  an  eloquent  contrast  between  Eng- 
land— where  penal  legislation,  not  yet  codified,  is 
theoretically  very  imperfect,  but  where  the  judges 
are  excellent,  which  results  in  making  the  admin- 
istration of  penal  justice  satisfactory,  and  Italy, 
where  we  have  employed  twenty-five  years  of  study 
400 


THE    JUDICIARY 

in  compiling  a  penal  code;  where  we  have  in  re- 
turn a  penal  magistracy  incapable  from  a  scientific 
point  of  view  and  without  independence  with  re- 
spect to  the  executive  power ;  where  the  adminis- 
tration of  penal  justice  is  discredited,  vexatious  for 
honest  people,  powerless  against  malefactors."1  , 

Thus  we  see  the  supreme  importance  of  having  \. 
an  able  and  efficient  criminal  magistracy.  In  order 
to  attract  to  it  the  men  of  the  best  quality,  it  will 
be  necessary  to  offer  adequate  remuneration  an- 
permanency  of  occupation.  These  will  also  be 
guarantees  against  the  danger  of  bribery.  The 
training  which  we  have  outlined  above  will  give 
them  the  necessary  special  knowledge.  By  the 
study  of  law  and  of  social  science  they  will  come 
to  appreciate  the  relation  between  society  and  the 
criminal  and  will  understand  the  significance  of 
crime  in  the  social  economy.  By  the  study  of  the 
scientific  methods  of  gathering  evidence,  the  psy- 
chology of  testimony,  the  law  of  evidence  and  the 
technical  rules  of  procedure  they  will  become  com- 
petent to  judge  as  to  the  commission  of  crime.  By 
the  study  of  the  social  and  anthropological  causes 
of  crime  and  the  scientific  methods  of  penal  treat- 
ment they  will  be  able  to  prescribe  treatment  wisely 
for  the  criminal.  This  preliminary  theoretic  edu- 
cation will  be  supplemented  as  we  have  seen  by  an 
extensive  and  varied  practical  experience  in  the 
different  branches  of  procedure. 

These  judges  will  be  able  to  gather  a  great  deal 
of  anthropological  and  sociological  data  which  the 

*Op.  dt  p.  525. 

26  tfOl 


I 


CRIMINAL    PROCEDURE 

judges  of  to-day  are  incapable  of  doing.  These 
data  will  be  of  the  greatest  value  in  developing 
the  science  of  criminology  and  increasing  its  ap- 
plications to  procedure.  Upon  the  decisions  of 
judges  will  be  based  a  system  of  jurisprudence 
which,  though  it  can  never  be  as  exact  as  a  juris- 
prudence based  on  a  penal  code,  will  yet  increase 
the  wisdom  and  certainty  of  decisions  as  time  goes 
by. 


iSA 


CHAPTER  XII 
THE  NEW  CRIMINAL  PROCEDURE 

In  the  course  of  the  preceding  chapters  several 
changes  have  been  suggested  the  object  of  which 
is  to  make  of  practical  utility  the  data  of  criminal 
anthropology  and  sociology.  These  changes  are 
sufficiently  numerous  and  sufficiently  fundamental 
in  their  character  to  transform  criminal  procedure 
more  or  less  completely.  Let  us  see  what  will  be 
this  new  procedure  in  which  all  these  changes  will 
be  embodied. 

The  first  step  in  the  new  procedure  as  in  the 
old  must  be  the  gathering  of  evidence.  "The  first 
inquiry,  the  fundamental  inquiry,  in  a  penal  judg- 
ment directed  according  to  the  new  scientific  prin- 
ciples, will  consist  still  and  always  in  ascertaining 
if  the  accused  is  really  the  author  of  the  deed  sub- 
mitted to  judgment,  and  in  determining  the  motives 
and  circumstances  of  the  deed  itself."1  As  we 
have  seen,  the  police  is  the  first  agency  for  gather- 
ing evidence.  To  accomplish  this  task  policemen 
should  be  trained  to  know  what  is  evidence,  to 
recognize  it  when  they  see  it  and  to  know  how  to 
make  a  record  of  it.  In  the  second  place  scientific 

1  E.  Ferri :  La  sociologie  criminelle,  Paris,  1905,  p.  512. 
403 


methods  of  examination  should  be  used  in  order 
to  get  as  much  information  as  possible  out  of  the 
evidence  which  has  been  gathered.  The  data  of 
experimental  psychology  should  be  utilized  in  ex- 
amining witnesses.  In  the  third  place  expert  tes- 
timony should  be  used  as  much  as  possible. 

The  contradictory  debate  should  be  retained  for 
the  exposition  of  evidence,  since  it  presents  the 
evidence  in  the  greatest  detail  and  shows  clearly 
the  relative  strength  of  the  two  sides.  The  prose- 
cution and  defense  should  be  conducted  by  trained 
advocates  employed  by  the  State  who  will  be  able 
to  analyze  and  show  the  significance  of  anthropo- 
logical and  sociological  as  well  as  of  legal  evi- 
dence. 

For  the  weighing  of  evidence  there  is  the  judge 
prepared  for  his  work  by  a  training,  both  theoretic 
and  practical,  which  has  been  described  in  the  last 
chapter.  The  lay  jury  will  be  abolished  with  the 
possible  exception  of  its  retention  for  political 
crimes.  But  a  jury  of  experts  may  sometimes  be 
used  for  the  decision  of  technical  points. 

In  the  organization  of  the  new  judicial  system 
cases  will  be  distributed  among  the  different  courts 
according  to  the  nature  of  the  cases  and  their  im- 
portance. The  courts  will  be  specialized  for  the 
trial  of  certain  classes  of  cases  and  cases  belonging 
to  these  classes  will  be  sent  to  them.  Cases  de- 
cided in  the  lower  courts  may  be  appealed  to  the 
higher  courts  under  certain  conditions.  The  ex- 
tension of  the  indeterminate  sentence  will  destroy 
the  necessity  of  appealing  with  regard  to  the  length 
404 


THE     NEW     CRIMINAL     PROCEDURE 

of  the  sentence,  thus  lessening  the  number  of  cases 
to  be  appealed. 

In  this  connection  the  important  question  of  the 
relation  of  criminal  procedure  to  penal  treatment 
must  be  considered.  Procedure  must  govern  penal 
treatment  to  a  certain  extent  since  it  determines 
the  class  of  criminals  to  which  a  criminal  belongs 
and  reveals  many  personal  characteristics.  It  can- 
not, however,  govern  penal  treatment  absolutely 
since  in  the  course  of  treatment  much  will  be 
learned  about  the  criminal  which  will  influence  the 
nature  of  the  treatment.  On  the  other  hand  the 
data  gathered  in  the  course  of  the  treatment  must 
have  a  great  deal  of  significance  for  procedure 
since  it  will  determine  more  precisely  the  classifi- 
cation of  criminals  and  will  furnish  a  much  broader 
basis  of  facts  for  judgment.  On  account  of  this 
action  and  reaction  between  procedure  and  penal 
treatment  it  is  evident  that  there  must  be  a  close 
connection  between  the  two.  In  fact,  as  both  be 
long  to  society's  system  of  repressing  crime  there 
is  a  direct  continuity  between  them.  This  con- 
tinuity can  be  established  in  practise  by  means  of 
the  periodic  revision  of  sentences. 

We  have  seen  that  the  principle  of  the  individual- 
ization  of  punishment  requires  that  sentences  shall 
be  indeterminate.  It  is,  however,  a  practical  im- 
possibility to  make  sentences  absolutely  indeter- 
minate since  the  responsible  authority  cannot  have 
all  the  cases  under  consideration  at  the  same  time. 
It  therefore  becomes  necessary  to  revise  each 
sentence  at  periodic  intervals  leaving  the  sentence 
405 


determinate  between  the  revisions.  Thus  impris- 
onment becomes  a  period  of  observation  during 
which  the  adaptability  of  the  criminal  for  social 
life  is  determined.  Scientific  management  of  pris- 
ons is  necessary  in  order  to  gather  the  data  on 
the  basis  of  which  this  decision  can  be  made.  Then 
at  each  revision  it  can  be  determined  whether  the 
detention  should  be  terminated  or  continued  and 
if  continued  whether  the  same  or  a  different  treat- 
ment shall  be  applied. 

Now  the  important  question  is  what  authority 
shall  revise  these  sentences.  At  Elmira  Reforma- 
tory we  already  have  a  system  of  revising  sentences 
periodically.  Here  after  a  prisoner  has  remained 
the  minimum  period  his  sentence  is  revised  every 
six  months  by  a  board  of  parole  composed  of  one 
or  two  reformatory  officials  and  a  number  of  out- 
side officials.  This  system  is  not  strictly  scientific 
since  the  members  of  this  board  aside  from  those 
who  are  officials  of  the  reformatory  cannot  know 
much  about  the  prisoners  and  have  no  special  train- 
ing for  this  work.  But  it  suggests  a  permanent 
board  of  revision  specially  trained  for  this  work. 
Such  a  system  is  contemplated  by  Ferri  who  says 
that  "sentences  will  be  revised  periodically  during 
their  execution  by  permanent  technical  commis- 
sions, who  will  limit  rigorously  the  duration  of 
isolation  to  the  time  necessary  for  the  social  re- 
adaption  of  those  isolated."1 

But  another  method  which  has  been  suggested 
is  that  the  judges  shall  revise  the  sentences.  By 

1  op.  dt.  p.  633. 

406 


THE    NEW    CRIMINAL    PROCEDURE 

so  doing  the  continuity  between  procedure  and 
penal  treatment  will  be  established  in  practise.  The 
decisions  of  the  judges  would,  of  course,  be  based 
upon  the  data  furnished  them  by  the  prison  author- 
ities and  upon  examination  of  the  prisoners.  From 
this  work  they  would  learn  a  great  deal  which  would 
help  them  when  conducting  the  procedure.  Their 
responsibility  would  be  greatly  increased  so  that  a 
judge  would  be  responsible  for  his  acts  beyond  the 
original  sentence.  The  penal  judgment  would  no 
longer  be  a  definite  and  irrevocable  decision.  We 
have  no  space  to  discuss  the  details  of  this  system 
which  belongs  more  to  penology  than  to  procedure 
and  which  w7ill  have  to  be  worked  out  in  practise. 
But  the  necessity  of  establishing  in  practise  the 
connection  between  procedure  and  penal  treatment 
has  been  shown. 

Before  we  close  it  may  be  well  to  consider  the 
forces  by  means  of  which  the  new  criminal  pro- 
cedure will  be  evolved.  Each  epoch  has  its  own 
criminality  which  requires  a  procedure  somewhat 
special.  When  crimes  were  violent  and  bloody  a 
stern  and  arbitrary  system  of  repression  was  nec- 
essary. Furthermore,  public  opinion  has  a  great 
deal  to  do  with  the  kind  of  procedure  in  a  given 
epoch.  When  there  was  a  strong  popular  feeling 
of  vengeance  against  the  criminal  the  procedure 
was  necessarily  vengeful  in  its  character. 

The  procedure  we  have  outlined  is  undoubtedly 

well  fitted  for  the  criminality  of  the  present  and 

can  be  easily  adapted  to  any  form  of  criminality 

which  may  arise  in  the  future.     But  a  feeling  of 

407 


CRIMINAL     PROCEDURE 

vengeance  towards  criminals  still  exists  to  a  cer- 
tain extent  so  that  it  would  not  be  possible  to 
introduce  this  procedure  suddenly.  The  popular 
attitude  to-day  towards  the  criminal  has  been  de- 
scribed in  the  following  passage:  "The  man  who 
has  shown  himself  hateful  for  society  excites  in  his 
turn  our  hate,  and  appears  to  us  to  merit  it.  Sick 
or  well,  with  a  will  free  or  determined,  he  is  odious 
to  us  and  we  detest  him,  above  all  if  he  has  injured 
one  of  our  kindred  or  has  taken  our  property.  Let 
us  understand  how  distant  is  the  time  of  that  su- 
preme serenity  which  would  be  so  becoming  to 
Justice,  the  time  when,  the  heart  freed  from  nar- 
row egotism  and  from  fear,  our  mind  will  retain 
for  the  most  atrocious  murderers  only  a  mild  and 
troubled  pity !  At  the  present  time  if  the  tribunals 
and  courts  of  assizes  dared  to  show  themselves 
gentle,  to  put  a  criminal  in  the  hospital  as  a  sick 
person,  and  if  they  refused  to  administer  to  him 
social  vengeance,  punishment,  the  people  would 
not  understand  and  far  from  having  recourse  to 
them  would  take  justice  into  their  own  hands."1 

It  is  probably  just  as  well  that  this  procedure 
cannot  be  introduced  suddenly  since  it  seems  in- 
compatible with  the  respect  owing  to  justice  to 
change  its  forms  suddenly.  Tarde  has  suggested 
this  in  the  following  remark:  "Be  revolutionary  in 
social  science,  but  conservative  in  politics  or  in 
criminal  justice."2  Furthermore,  conservative 
opposition  to  new  ideas  tends  to  select  from  them 

1  Maurice    de    Fleury:    L'ame    du    criminel,    Paris,    1898, 
pp.   107-108. 

2  La  philosophic  penale,  p.  427. 

408 


THE    NEW     CRIMINAL     PROCEDURE 

the  good  and  useful  ideas  and  to  reject  the  bad 
ones.  The  slowness  resulting  from  this  process  of 
selection  and  rejection  results  in  the  new  ideas  be- 
coming firmly  fixed  in  the  minds  of  the  people  and 
the  institutions  based  upon  them  being  upon  a 
stable  foundation.  It  is,  however,  important  that 
this  opposition  should  not  be  carried  too  far  so  as 
to  retard  progress  unduly. 

The  scientific  spirit  is  already  disseminated  to  a 
certain  extent  and  the  recent  modifications  in  pro- 
cedure which  we  have  described  are  preparing  the 
way  for  greater  changes  in  the  future.  The  study 
of  criminology  should  be  continued  in  order  to 
develop  the  science  as  rapidly  as  possible.  Data 
accumulated  in  the  practical  workings  of  procedure 
should  be  utilized,  especially  as  procedure  becomes 
more  scientific.  As  we  have  seen,  the  classical 
school  has  finished  its  work  so  that  there  ought  to 
be  a  revival  of  the  study  of  criminal  jurisprudence 
in  order  to  develop  a  new  jurisprudence  based  on 
scientific  principles. 

As  large  a  body  as  possible  of  intelligent  and 
educated  opinion  should  be  developed  which  will 
bring  pressure  to  bear  upon  legislatures  in  favor 
of  these  reforms.  The  legislator  is  usually  some- 
what behind  the  science  of  his  time  and  such  pres- 
sure from  outside  is  necessary  to  force  him  to  util- 
ize the  results  of  scientific  research  in  legislation. 
To  accomplish  this  end  commissions  should  be  ap- 
pointed to  study  these  problems  and  to  propose 
constructive  legislation. 

The  last  few  paragraphs  make  evident  what  has 
409 


CRIMINAL     PROCEDURE 

been  implied  many  times  in  the  course  of  this  book, 
namely,  that  the  evolution  of  the  new  criminal  pro- 
cedure depends  upon  the  dissemination  of  a  higher 
sense  of  justice.  The  new  procedure  will  in  turn 
set  a  much  higher  standard  of  justice  which  will 
take  into  consideration  the  forces  which  have  made 
the  criminal.  Criminal  procedure  will  thus  be- 
come one  of  the  most  important  agencies  for  bring- 
ing to  pass  social  justice. 

Crime  is  the  most  serious  manifestation  of  the 
weak  places  in  the  social  organism.  When  once 
the  treatment  of  the  criminal  is  governed  by  a 
knowledge  of  the  forces  which  have  caused  him 
and  his  crime  there  will  be  good  reason  to  hope 
that  these  causes  will,  in  large  part,  be  removed. 


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